{"id":169628,"date":"1984-12-06T00:00:00","date_gmt":"1984-12-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indian-express-newspapers-vs-union-of-india-ors-etc-etc-on-6-december-1984"},"modified":"2016-04-13T01:09:03","modified_gmt":"2016-04-12T19:39:03","slug":"indian-express-newspapers-vs-union-of-india-ors-etc-etc-on-6-december-1984","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indian-express-newspapers-vs-union-of-india-ors-etc-etc-on-6-december-1984","title":{"rendered":"Indian Express Newspapers … vs Union Of India & Ors. Etc. Etc on 6 December, 1984"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Indian Express Newspapers … vs Union Of India & Ors. Etc. Etc on 6 December, 1984<\/div>\n
Equivalent citations: 1986 AIR 515, \t\t 1985 SCR (2) 287<\/div>\n
Author: E Venkataramiah<\/div>\n
Bench: Venkataramiah, E.S. (J)<\/div>\n
           PETITIONER:\nINDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIVATE LTD. & ORS. ETC.E\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS. ETC. ETC.\n\nDATE OF JUDGMENT06\/12\/1984\n\nBENCH:\nVENKATARAMIAH, E.S. (J)\nBENCH:\nVENKATARAMIAH, E.S. (J)\nREDDY, O. CHINNAPPA (J)\nSEN, A.P. (J)\n\nCITATION:\n 1986 AIR  515\t\t  1985 SCR  (2) 287\n 1985 SCC  (1) 641\t  1984 SCALE  (2)853\n CITATOR INFO :\n R\t    1989 SC 190\t (14)\n\n\nACT:\n     Constitution of  India 1950 Article 19(I )(a)-  Freedom\nof speech  and expresion- Whether includes Freedom of press-\nRestrictions  other  than  those  In  Article  19(2)-Whether\nreasonable-Interference in  the\t name  of  Public  Interest-\nWhether justified. D\n     Roll of  Press and Newspapers-Duty of Court to held the\nbalance\t even\tand  to\t strike\t down  any  unconstitutional\ninvasion of press.\n     Fundamental rights\t under\tArticle\t 19(l)(a)  and\t(g)-\nWhether different from right conferred by First Amendment to\nAmerican Constitution.\n      Article 13(3)(a)-Notification under section 25 Customs\nAct 1962-Contrary to fundamental rights-Whether to be struck\ndown.\n      Article  14-Classification of  newspapers for  levying\ncustoms duty-Whether discriminatory.\n      Article  4I-Duty of  State to  encourage education  of\nmasses through media of press-Necessity of. F\n     Entry 87  and 93  List  1.\t Seventh  Schedule-Newspaper\nIndustry-Levy of tax-Competency of Parliament to enact laws-\nScrutiny by  Courts when  arises -Tax transgressing into the\nfield of  freedom of  speech and expression and stifles that\nfreedom-Whether unconstitutional.\n     Article 32-Validity  of tax-Duty  of  Court-Not  to  be\nburdensome-Newspaper Industry  not to  be singled out-Custom\nDuty on newspaper-Whether tax on knowledge-People's right to\nknow-Imposition of tax-Government to be more cautious.\n     Interpretation of statutes:\n     Constitution   of\t  India\t  1950\t Article   19(1)(a)-\nInterpretation of-American\n288\ncases-Whether sole  guide-He1p in  understanding  the  basic\nprinciples of freedom of speech and expression.\n     Statutes Taxing  Newsprint-Tests for  determining vires\nof-Different   from   other   taxing   statutes-Grounds\t  of\nchallenge.\n      Customs Act. 1962 Section 25-Power to grant exemption-\nWhether legislative power-Whether notification a Subordinate\npiece of  legislation Whether  questionable on the ground of\nunreasonableness-Power of  Government discretionary  but not\nunrestricted.\n      Customs  Act 1962 Section 25-Notification Substitution\nof by  another- Whether\t former notification would revive ff\nthe latter is held invalid.\n     Customs Tariff  Act 1975  Section 2 and Second Schedule\nHeading 48.01\/21  -Sub-heading 2-Newsprint-Import  duty\t and\nauxiliary levy at a flat rate- Validity of.\n\n\n\nHEADNOTE:\n      Under  the Indian Tariff Act 1934, there was a levy of\ncustoms duty on imported paper. Exemption, however, had been\ngranted for import of white, grey or unglazed newsprint from\nthe levy  of any  kind of  customs duty in excess of 1.5% ad\nvalorem but  subsequently a  specific import  duty of Rs. 50\nper MT\twas levied  on\tnewsprint  imports  upto  1966.\t The\nInquiry Committee  on Small Newspapers examined the question\nof customs  duty on  newsprint and  submitted its  report in\n1965 recommending  total exemption of newsprint from customs\nduty. Pursuant\tto the\tsaid recommendation,  the Government\nabolished customs  duty on  newsprint altogether in the year\n1966. In  1971, a  regulatory duty  of 2-1\/2%  was levied on\nnewsprint imports. This 2-1\/2% regulatory duty was abolished\nand was\t converted into 5% auxiliary duty by the Finance Act\nof 1973.  On the  Customs Tariff Act 1975 coming into force,\nthe Indian  Tariff Act\t1934 was  repealed. Under  section 2\nread with  Heading No. 48.01\/21 of the First Schedule to the\n197S Act, a levy of basic customs duty of 40% ad valorem was\nimposed on  newsprint. However, the 5% auxiliary duty levied\nfrom April  1, 1973  continued to  be in operation which was\nalso totally  abolished in  July 1977.\tThe total  exemption\nfrom customs  duty on newsprint continued till March 1, 1981\nwhen  notification   dated  July  IS,  1977  granting  total\nexemption from\tcustoms duty  superseded by  the issue\tof a\nfresh notification  under which publishers of newspapers had\nto pay 10% ad valorem customs duty on imported newsprint. By\nanother notification  issued at\t about\tthe  same  time\t the\nauxiliary duty\timposed by  the Finance Act of 1981 above 5%\nad valorem was exempted in the case of newsprint. The result\nwas that  a total  duty of 15% ad valorem came to be imposed\non newsprint for the year 1981-82, which led to the increase\nin the\tprice of  newspaper resulting in fall in circulation\nof news\t papers. In the first set of writ petitions this 15%\nlevy was challenged.\n      During  the pendency  of these  writ  petitions  while\nCustoms Tariff\tAct, 1975 was amended levying 40% ad valorem\nplus Rs.  1000 pet  MT as  customs duty\t on  newsprint,\t the\nauxiliary duty\tpayable on all goods subject to customs duty\nwas increased  to 50%  ad valorem. But by notification dated\nFebruary 82.\n289\n1982 issued  under section 25(2) of the Customs Act 1962 the\nnotification A\tdated March  1, 1981  was superseded and Rs.\n550 per\t tonne was  imposed as customs duty on newsprint and\nauxiliary duty\twas fixed  at Rs.  275 per tonne. In all Rs.\n825 per tonne of newspaper had to be paid as duty.\n      Under  the newsprint  policy of  the Government  there\nwere three  sources of\tsupply of  newsprint-(i)  high\tseas\nsales. (ii)  sales from\t the buffer  stock built  up by\t the\nState Trading Corporation which includes imported newsprint,\nand  (iii)   newsprint\tmanufactured   in  India.   Imported\nnewsprint is an important component of the total quantity of\nnewsprint utilised by any newspaper establishment.\n      The  validity of\tthe imposition\tof  import  duty  on\nnewsprint imported  from abroad\t under\tsection\t 12  of\t the\nCustoms Act  1962 (Act\t52 of  1962) read with section 2 and\nHeading No.  48.01\/21  Sub-heading  No.\t (2)  in  the  First\nSchedule to  the Customs  Tariff Act,  1975 (Act 51 of 1975)\nand the\t levy of  auxiliary duty under the Finance Act, 1981\non newsprint  as  modified  by\tnotifications  issued  under\nsection 25 of the Customs Act 1962 with effect from March 1,\n1981 was challenged in the writ petitions.\n      In  the writ  petitions it  was contended (I) that the\nimposition of  the import  duty has  the  direct  effect  of\ncrippling the freedom of speech and expression guaranteed by\nthe Constitution  as it\t led to the increase in the price of\nnewspapers and\tthe inevitable\tconsequence of\treduction of\ntheir circulation;  (2) that  with the\tgrowth of population\nand literacy  in the  country every newspaper is expected to\nregister  an   automatic  growth  of  at  least\t 5%  in\t its\ncirculation every  year but this growth is directly 'impeded\nby the\tincrease in  the price\tof newspapers;\t(3) that the\nmethod adopted\tby the\tCustoms Act,  1962 and\tthe  Customs\nTariff Act,  1975 in determining the rate of import duty has\nexposed\t  E    the   newspaper\t publishers   to   Executive\ninterference; (4)  that there  was no need to impose customs\nduty on newsprint which had enjoyed total exemption from its\npayment till March 1, 1981, as the foreign exchange position\nwas quite  comfortable. Under the scheme in force, the State\nTrading\t Corporation  of  India\t sells\tnewsprint  to  small\nnewspapers with\t a circulation of less than 15000 at a price\nwhich  does  not  include  any\t.  import  duty.  to  medium\nnewspapers with\t a circulation between 15000 and 50,000 at a\nprice which includes 5% ad valorem duty (now Rs. 275 per MT)\nand to\tbig   newspapers having a Circulation of over 50,000\nat a  price which  includes the\t levy of 15% ad valorem duty\n(now Rs.  825 per  MT). This  classification of\t newspapers'\ninto big,  medium and  small newspapers is irrational as the\npurchases on high seas are sometimes effected by a publisher\nowning\tmany   newspapers  which  may  belong  to  different\nclasses; (5)  that the\tenormous increase  in the  price  of\nnewsprint subsequent  to March\t1, 1981 and the inflationary\neconomic conditions  which led\tto higher cost of production\nhave made  it impossible  for the  industry to bear the duty\nany longer.  Since the\tcapacity to  bear  the\tduty  is  an\nessential element  in determining  the reasonableness of the\nlevy, the  continuance of  the levy  is violative of Article\n19(1)(a) and  Article  19(1)(g)\t of  the  Constitution.\t The\nimposition of  the levy on large newspapers by the Executive\nis done\t with a\t view to  stifling circulation of newspapers\nwhich are highly critical of the performance of the adminis-\n290\ntration. The classification of newspapers into small, medium\nand big\t for purposes of levy of import duty is violative of\nArticle 14  of the  Constitution; and  (6) that the power of\nthe Government\tto levy\t taxes of  any kind on the newspaper\nestablishment rings  the death-knell of the freedom of press\nand would be totally against the spirit of the Constitution.\n     The  Union\t  of  India  contested\tthe  writ  petitions\nalleging (I)  that the Government had levied the duty in the\npublic interest\t to augment  the revenue  of the Government.\nWhen exemption is given from the customs duty, the Executive\nhas to satisfy itself that there is some other corresponding\npublic interest\t justifying such  exemption and\t that in the\nabsence of  any such  public interest,\tthere is no power to\nexempt but  to carry out the mandate of Parliament which has\nfixed the  rate of duty by the Customs Tariff Act, 1975; (2)\nthat  the  classification  of  newspapers  for\tpurposes  of\ngranting exemption  is done    the  public  interest  having\nregard to relevant considerations, and that the levy was not\nMalay fide  Since every\t section of  the society has to bear\nits due\t share of  the economic burden of the state, levy of\ncustoms\t duty  on  newsprint  cannot  be  considered  to  be\nviolative of  Article 19(1) (a). The plea that the burden of\ntaxation is excessive is an irrelevant factor to the levy of\nimport duty on newsprint; (3) that the fact that the foreign\nexchange  position   was  comfortable  was  no\tbar  to\t the\nimposition of import duty; and (4) since the duty imposed is\nan indirect  tax which\twould be  borne by  the purchaser of\nnewspaper, the petitioner could not feel aggrieved by it.\n     Allowing the Writ Petitions,\n^\n     HELD: 1. The expression 'freedom of press' has not been\nused in\t Article 19  of the Constitution but, as declared by\nthis Court,  it is  included in\t Article 19  (1)  (a)  which\nguarantees freedom  of speech  and  expression.\t Freedom  of\npress means  freedom from  interference from authority which\nwould have  the effect\tof interference with the content and\ncirculation of newspapers. [310C; 35I]\n     2. There  could not  be any  kind of restriction on the\nfreedom of  speech and expression other than those mentioned\nin Article  19 (2)  and it  is clear that there could not be\nany interference  with that  freedom in\t the name  of public\ninterest,  Even\t  when\tclause\t (2)  of   Article  19\t was\nsubsequently  substituted   under  the\tConstitution  (First\nAmendment) Act,\t 1951 by  a new\t clause which  permitted the\nimposition of  reasonable restrictions\ton  the\t freedom  of\nspeech and  expression in  the interests  of sovereignty and\nintegrity of  India, these  urity  of  the  State,  friendly\nrelations with\tforeign States,\t public\t order,\t decency  or\nmorality in  relation to  contempt of  court, defamation  or\nincitement to  an offence.  Parliament\tdid  not  choose  to\ninclude a  clause  enabling  the  imposition  of  reasonable\nrestrictions in the public interest. [3l2B-C]\n     3.\t Freedom  of  press  is\t the  heart  of\t social\t and\npolitical. intercourse The press has now assumed the role of\nthe public  educator making  formal and non-formal education\npossible in  a large  scale particularly  in the  developing\nworld,\twhere\ttelevision  and\t  other\t kinds\t of   modern\ncommunication are not\n291\nstill available\t for all sections of society. The purpose of\nthe press  is to  advance the  public interest by publishing\nfacts and  opinions without  which a  democratic  electorate\ncannot\tmake   responsible   judgments.\t  Newspapers   being\npurveyors of  news and\tviews having  a\t bearing  on  public\nadministration very  often carry material which would not be\npalatable to  governments and other authorities. With a view\nto checking  malpractices which\t interfere with free flow of\ninformation, democratic\t constitutions all  over  the  world\nhave made  provisions guaranteeing the freedom of speech and\nexpression laying  down the  limits of interference with it.\n[316B.D; H]\n     It is  the primary\t duty of  all the national courts to\nuphold\tthe   said  freedom   and  invalidate  all  laws  or\nadministrative actions\twhich interfere with it, contrary to\nthe constitutional mandate. [317A]\n     Brij Bhushan  & Anr. v The State of Delhi [1950] S C.R.\n605, Bennett  Coleman &\t Co. &\tors v. Union of India & ors.\n[1973] 2  S.C.R. 757, Romesh Thappar v. The State of Madras<\/a>;\n1950 S.C.R. 594, Express Newspapers (Private) Ltd. & Anr. v.\nThe Union  of<\/a> lndia & ors. [1959] S.C R. 12 and Sakal Papers\n(P Ltd.\t & Ors\tv. The\tUnion of  India<\/a> [19621 3 S.C.R. 842,\nfollowed.\n     1 Annals  of Congress  (1789-96) p. 141; D.R. Mankekar:\nThe Press  under Pressure  (1973) p  25; Article  19 of\t the\nUniversal Declaration  of Human\t Rights [1948: Article 19 of\nthe International  Covenant on\tCivil and  Political  Rights\n1965; Article 10 of the European Convention on Human Rights:\nFirst Amendment\t to the Constitution of the United States of\nAmerica; Article  by Frank  C. Newman  and  Karel  Vasak  on\n'Civil and political Rights' in the International Dimensions\nof Human  Rights (Edited  by Karel Vasak) Vo. 1 pp. 155-156;\n\"Many Voices  one World\"  a publication of UNESCO containing\nthe Final  Report of  the International\t Commission for\t the\nStudy  of   Communication  Problems   Part  V  dealing\twith\n'Communication Tomorrow'  p. 265; Article entitled 'Toward a\nGeneral Theory\tof the First Amendment' by Thomas 1. Emerson\n(The Yale  Law Journal\tVol. 72 .877 at p. 906; Second Press\nCommission Report (Vol.l. pp. 3435). referred to.\n     5. (i)  Excluding small newspaper establishments having\ncirculation of\tless than  about 10,000\t copies a  day,\t all\nother\tbigger\t  newspaper    establishments\t have\t the\ncharacteristics of  a large  industry The  Government has to\nprovide many  services to  them resulting  in a big drain on\nthe financial  resources of  the  State\t as  many  of  these\nservices  are\theavily\t subsidized.   Naturally  such\t big\nnewspaper organisations\t have to  contribute their due share\nto the\tpublic exchequer  and have to bear the common fiscal\nburden like all others. 1324C; E]\n     (ii) While\t examining the\tconstitutionality of  a\t law\nsaid  to   be  contravening   Article  19  (1)\t(a)  of\t the\nConstitution, the  decisions of\t the Supreme  Court  of\t the\nUnited States  of America  cannot be  solely relied upon for\nguidance  but\tcould  be   taken  into\t  consideration\t for\nunderstanding the  basic principles of freedom of speech and\nexpressiyn and\tthe need  for that  freedom in\ta democratic\ncountry. 1324F-G]\n     (iii) The\tpattern of Article 19 (1) (a) and of Article\n19 (1)\t(g) of the Indian Constitution is different from the\npattern of  the First Amendment to the American Constitution\nwhich is almost absolute in its terms. The rights guaranteed\nunder Article  19 (1)  (a) and\tArticle 19  (1) (g)  of\t the\nConstitution\n292\nare to\tbe read\t alongwith clauses (2) and (6) of Article 19\nwhich  carve   out  areas   A  in  respect  of\twhich  valid\nlegislation can be made. [324H; 325A]\n     6. Newspaper  industry has\t not been  granted exemption\nfrom taxation  in express  terms. Entry\t 92 of List I of the\nSeventh Schedule  in the Constitution empowers Parliament to\nmake laws  levying taxes  on sale  or purchase of newspapers\nand on\tadvertisements published  therein. The power to levy\ncustoms duties\ton goods  imported into\t the country is also\nentrusted to Parliament by Entry 83 in List I of the Seventh\nSchedule to the Constitution. [325B; 326G]\n     7. The  First Amendment  to  the  Constitution  of\t the\nUnited States  of America  is almost  in absolute terms and,\ntherefore, no  law abridging the freedom of the press can be\nmade  by   the\tCongress.   Yet\t the  American\tCourts\thave\nrecognised  the\t  power\t of  the  State\t to  levy  taxes  on\nnewspapers establishments,  subject to\tjudicial  review  by\ncourts\tby  the\t application  of  the  due  process  of\t law\nprinciple. [328E-F]\n     8. The  police power,  taxation and  eminent domain are\nall forms  of social  control which  are essential for peace\nand good  government. In  India the  power to  levy  tax  on\npersons carrying  on the  business or  publishing newspapers\nhas got\t to be\trecognised as  it is  inherent in  the\tvery\nconcept of  government.\t But  the  exercise  of\t such  power\nshould. however,  be subject to scrutiny by courts. Entry 92\nof List\t I of  the  Seventh  Schedule  to  the\tConstitution\nexpressly suggests the existence of such power. [328G; 329C]\n     9. It  is not necessary for the press to be subservient\nto the\tGovernment. As long as this Court sits' newspapermen\nneed not  have the  fear of their freedom being curtailed by\nunconstitutional means.\t It is\tnot acceptable\tthat  merely\nbecause the  Government has  the power\tto levy\t taxes,\t the\nfreedom of  press would be totally lost. The Court is always\nthere to  hold the  balance even  and  to  strike  down\t any\nunconstitutional invasion of that freedom. [338G; 339F]\n     10. Newspaper  industry enjoys  two of  the fundamental\nrights,\t namely,   the\tfreedom\t of  speech  and  expression\nguaranteed under  Article 19  (1) (a)  and  the\t freedom  to\nengage in  any profession,  occupation, trade.\tindustry  or\nbusiness guaranteed  under Article  19 (1)  (g), While there\ncan  be\t  no  tax  on  the  right  to  exercise\t freedom  of\nexpression,  tax  is  leviable\ton  profession,\t occupation,\ntrade, business\t and industry.\tHence  tax  is\tleviable  on\nnewspaper industry.  But when such tax transgresses into the\nfield of  freedom of expression and stifles that freedom, it\nbecomes unconstitutional. As long as it is within reasonable\nlimits and does not impede freedom of expression it will not\nbe contravening\t the limitations  of  Article  19  (2).\t The\ndelicate task  of determining  when it crosses from the area\nof profession,\toccupation, trade, business or industry into\nthe area  of freedom  of expression and interferes with that\nfreedom is entrusted to the courts. [339G-H; 340A-B]\n     11. While\tlevying a  tax on newspaper industry it must\nbe kept\t in mind  that it  should not  be an  over-burden on\nnewspapers  which   constitute\tthe  Fourth  Estate  of\t the\ncountry. Nor  should it\t single out  newspaper industry\t for\nharsh treatment.  Imposition of\t a tax like the customs duty\non  newsprint  is  an  imposition  on  knowledge  and  would\nvirtually amount to a burden imposed on\n293\na man for being literate and for being conscious of his duty\nas a  citizen to  inform himself about the would around him.\n'The public  interest in  freedom A  of discussion (of which\nthe freedom  of the  press is  one aspect)  stems  from\t the\nrequirement that  members of  a democratic society should be\nsufficiently informed  that they may influence intelligently\nthe decisions which may affect 'themselves'. [341H; 342A-B]\n     12.  Freedom   of\texpression  has\t four  broad  social\npurposes to serve: (i) it helps an individual to attain self\nfulfilment, (ii) it assists in the discovery of truth, (iii)\nit  strengthens\t  the\tcapacity   of\tan   individual\t  in\nparticipating in  decision making,  and (iv)  it provides  a\nmechanism by  which it\twould be  possible  to\testablish  a\nreasonable balance  between stability and social change. All\nmembers of  society should be able to form their own beliefs\nand  communicate   them\t freely\t  to  others.  In  sum,\t the\nfundamental principle is the people's right to know. Freedom\nof  speech  and\t expression  should,  therefore,  receive  a\ngenerous  support   from  all\tthose  who  believe  in\t the\nparticipation of  people in  the administration.  It  is  on\naccount of  this special  interest which  society has in the\nfreedom of  speech and\texpression that\t the approach of the\nGovernment should  be more  cautious while  levying taxes on\nmatters concerning  newspaper industry\tthan  while  levying\ntaxes on other matters. [342C-E]\n     13. In  view of  the intimate  connection of  newsprint\nwith the freedom of the press, the tests for determining the\nvires of  a statute  taxing newsprint have, therefore, to be\ndifferent from\tthe tests  usually adopted  for testing\t the\nvires of  other taxing\tstatutes. In  the case\tof  ordinary\ntaxing statutes, the laws may be questioned only if they are\neither\topenly\t confiscatory  or  a  colourable  device  to\nconfiscate. On\tthe other  hand. in  the case  of a  tax  on\nnewsprint, it  may be  sufficient to  show  a  distinct\t and\nnoticeable burdensomeness, clearly and directly attributable\nto the tax. [342G-H]\n     Constituent Assembly Debates. Vol. IX pp. 1l75-1180 dt.\nSeptember 9,1949:  Corpus Juris\t Secundum (Vol. 16) p. 1132;\nAmerican Jurisprudence\t2d (Vol.  16) p. 662; Article on the\nFirst Amendment\t by Thomas  1. Emerson (The Yale Law journal\nVol. 72\t at p.\t941); Second Press Commission Report (Vol 1)\np.  35;\t  Essay\t No.   84  by  Alexander  Hamilton  in\t'The\nFederalist; Alice Lee Grosjean supervisor of Public Accounts\nfor the\t State of  Louisiana v.\t American Press\t Company 297\nU.S. 233:  80 L. ed. 660; Robert Murdock Jr. v. Commonwealth\nof Pennsylvania\t (City of  Jeannette). 319  U S 105: 87 Law.\ned. 1292  and Attorney\tGeneral & Anr. v. Antigua Times Ltd.\n[1975] 3 All E. R. 81, referred to\n      Bennett  Coleman & Co. & ors. v. Union of India &<\/a> ors,\n[19731 2  S.C.R. 757 and Sakal Papers (P) Ltd. & Ors. v. The\nUnion of India<\/a> [1962] 3 S.C.R. 842, distinguished. G\n     Attorney General v. rimes Newspapers [1973] 3 All. E.R.\n54, followed.\n     14, In  the instant  cases, assuming  that the power to\ngrant exemption under section 25 of the Customs Act, 1962 is\na  legislative\tpower  and  a  notification  issued  by\t the\nGovernment there under amounts to a piece of\n294\nsubordinate  legislation,  even\t then  the  notification  is\nliable to  be  questioned  on  the  ground  that  it  is  an\nunreasonable one. [34SC-D]\n     15. A  piece of  subordinate legislation does not carry\nthe same  degree of  immunity which  is enjoyed by a statute\npassed by  a competent\tlegislature Subordinate\t legislation\nmay be\tquestioned  on\tany  of\t grounds  on  which  plenary\nlegislation is\tquestioned.  In\t addition  it  may  also  be\nquestioned on  the ground  that it  does not  conform to the\nstatute under which it is made. It may further be questioned\non the\tground that  it is  contrary to\t some other statute.\nThat  is  because  subordinate\tlegislation  must  yield  to\nplenary legislation. It may also be questioned on the Ground\nthat it\t is unreasonable,  unreasonable not  in the sense of\nnot being reasonable, but in the sense that it is manifestly\narbitrary.\n\t\t\t\t\t      [345H ;346A-B]\n     16. In  India arbitrariness  is not  a separate  ground\nsince it  will come  within the embargo or Article 14 of the\nConstitution.  In  India  any  enquiry\tinto  the  vires  of\ndelegated legislation  must be\tconfined to  the  ground  on\nwhich plenary  legislation may\tbe questioned  to the ground\nthat it is contrary to other statutory provisions or that it\nis so  arbitrary  that\tit  could  not\tbe  said  to  be  in\nconformity with the statute or that it offends Article 14 of\nthe  Constitution.   Subordinate   legislation\t cannot\t  be\nquestioned on  the ground  of  violation  of  principles  of\nnatural\t justice  on  which  administrative  action  may  be\nquestioned.\n\t\t\t\t\t\t    [347E-G]\n     17. A  distinction must be made between delegation of a\nlegislative function  in the  case of  which the question of\nreasonableness cannot be enquired into and the investment by\nstatute to  exercise particular\t discretionary power. In the\nlatter case the question may be considered on all grounds on\nwhich administrative action may be questioned, such as, non-\napplication  of\t  mind,\t taking\t  irrelevant  matters\tinto\nconsideration,\tfailure\t  to  take   relevant  matters\tinto\nconsideration, etc. etc. On the facts and circumstances of a\ncase, a\t subordinate  legislation  may\tbe  struck  down  as\narbitrary or  contrary to  statute if  it fails to take into\naccount very  vital  facts  which  either  expressly  or  by\nnecessary  implication\t are  required\t to  be\t taken\tinto\nconsideration by the statute or, say, the Constitution. This\ncan only  be done  on the ground that it does not conform to\nthe statutory  or constitutional  requirements\tor  that  it\noffends\t Article   14  or   Article  19\t  (1)  (a)   of\t the\nConstitution. It  cannot, no  doubt, be\t done merely  on the\nground that  it is  not reasonable  or that it has not taken\ninto  account\trelevant  circumstances\t  which\t the   Court\nconsiders relevant. [ 348A-D]\n      8.  In cases  where the power vested in the Government\nis a  power which  has got  lo be  exercised in\t the  public\ninterest, as  it happens  to be\t here, the Court may require\nthe Government to exercise that power in a reasonable way in\naccordance with\t the spirit  of the  Constitution. The\tfact\nthat a\tnotification issued  under section  25\t(1)  of\t the\nCustoms Act,  1962 is  required to be laid before Parliament\nunder section  159 thereof  does not  make  any\t substantial\ndifference as  regards the  jurisdiction  of  the  court  to\npronounce on its validity. [348E-F]\n     19. Section 25 of the Customs Act, 1962 under which the\nnotifications are  issued confers  a power  on\tthe  Central\nGovernment coupled with a duty to examine the whole issue in\nthe light  of public  interest.\t It  provides  that  if\t the\nCentral Government  is satisfied that it is necessary in the\npublic interest so to\n295\ndo it  may exempt  generally either absolutely or subject to\nsuch conditions,  A goods of any description, from the whole\nor any\tpart of\t the  customs  duty  leviable  thereon.\t The\nCentral Government may if it is satisfied that in the public\ninterest so  to do  exempt from\t the payment  of duty  by  a\nspecial\t order\tin  each  case\tunder  circumstances  of  an\nexceptional nature  to be  stated in such order any goods on\nwhich duty  is leviable\t The power exercisable under section\n25 of the Customs Act, 1962 is no doubt discretionary but it\nis not unrestricted.\n\t\t\t\t\t\t    [350C-E]\n     20. Any  notification issued under a statute also being\na  'law'   as  defined\t under\tArticle\t  13(3)(a)  of\t the\nConstitution is\t liable to  be struck down if it is contrary\nof any\tof the\tfundamental rights guaranteed under Part III\nof the Constitution. [350H; 351A]\n     Article  entitled\t 'Judicial  Control   of   Delegated\nLegislation: The  Test\tof  Reasonableness'  by\t Prof.\tAlan\nWharam, 36  Modern Law\tReview 611 at pp 622 23; H.W.R Wade:\nAdministrative\tLaw   (5th  Edn.)   pp.\t 747-748;  Municipal\nCorporation of\tDelhi v.  Birla Cotton\tSpinning and Weaving\nMills Delhi  & Anr.<\/a>  [1968] 3  S.C.R 251;  Kruse v.  Johnson\n[1898] 2  Q.B.D. 91;  Mixnam  Properties  Ltd.\tv.  Chertsey\nU.D.C. [1964]  I Q.B. 214; The Tulsipur Sugar Co. Ltd v. The\nNotified Area  Committee Tulsipur<\/a>  [1980] 2S.C.R.1111;Ramesh\nChandra\t  Kachardas Porwal &  Ors. v. State of Maharashtra &\nors.<\/a> etc..  [1981] 2  S C.R.  866; Bates v. Lord Hailsham of\nSt. Marylebone\t& ors.\t[1972] 1  W.L.R. 1373 and Associated\nProvincial Picture  Houses Ltd.\t v.  Wednesbury\t Corporation\n[1948] 1 K.B. 223, referred to.\n     Narinder  Chand   Hem  Raj\t  &  ors.  v.  Lt.  Governor\nAdministrator Union Territory. Himachal Pradesh & Ors.<\/a>[1972]\n1 S.C.R. 940, distinguished E\n     State of Madras v. V.G. Rao<\/a> [1952] S.C.R. 597 and Breen\nv. Amalgamated\tEngineering Union  [1971] 2 Q.B. 175, relied\nupon.\n     21. If any duty is levied on newsprint by Government it\nnecessarily has\t to  be\t passed\t on  to\t the  purchasers  of\nnewspapers, unless  the industry  is able  to absorb  it. In\norder to  pass on  the duty  to the  consumer the  price  of\nnewspapers has\tto be  increased.  Such\t increase  naturally\naffects the circulation of newspapers adversely. [352G]\n     22. The  pattern of the law imposing customs duties and\nthe manner in which it is operated, to a certain exposes the\ncitizens who  are  liable  to  pay  customs  duties  to\t the\nvagaries  of  executive\t discretion.  While  Parliament\t has\nimposed duties\tby enacting  the Customs  Act, 1962  and the\nCustoms Tariff\tAct, 1962  the Executive Government is given\nwide power  by section\t25 of the Customs Act, 1962 to grant\nexemption from\tthe levy  of Customs  Duty, it is ordinarily\nassumed that  while such  power to grant exemptions is given\nto the\tGovernment it  will consider  all  relevant  aspects\ngoverning the  question whether\t exemption should be granted\nor not. In the instant case, in 1975 when the Customs Tariff\nAct,  1975  was\t enacted,  40%\tad  valorem  was  levied  on\nnewsprint even\tthough it  had been exempted from payment of\nsuch  duty.   If  the  exemption  had  not  been  continued,\nnewspaper publishers  had to pay 40% ad valorem customs duty\non the coming into force of the Customs Tariff Act,\n296\n1975 Then  again in  1982 by  the Finance Act, 1982 an extra\nlevy of\t Rs. 1000  per tonne  was imposed in addition to the\noriginal 40% ad valorem duty even though under the exemption\nnotification the  basic duty  had been\tfixed at  10% of the\nvalue  of  the\timported  newsprint.  Neither  any  material\njustifying the\tsaid additional\t levy was,  produced by\t the\nGovernment nor was it made clear why this futile exercise of\nlevying an  additional duty  of Rs.  1000 per tonne was done\nwhen under  the notification issued under. section 25 of the\nCustoms Act, 1962 on March 1, 1981, which was in force then,\ncustoms duty  on newsprint  above 10%  ad valorem  had\tbeen\nexempted.  While   levying  tax\t on  an\t activity  which  is\nprotected also\t Article  l9(1)(a) a  greater degree of care\nshould he  exhibited. While  it\t is  indisputable  that\t the\nnewspaper industry  should also\t hear its  due share  of the\ntotal burden of taxation alongwith the rest of the community\nwhen any  tax is specially imposed on newspaper industry, it\nshould he capable of being justified as a reasonable levy in\ncourt when  its validity  is challenged.  In the  absence of\nsufficient material.  the levy of 40 plus Rs. 1000 per tonne\nwould become vulnerable to attack. [355E-H;356A-C]\n      23. The reasons given by the Government to justify the\ntotal customs duty of 15% levied from March 1, 1981 or total\nRs. 825\t per tonne as it is currently being levied appear to\nbe inadequate. In the Finance Minister's speech delivered on\nthe floor  of the  Lok Sabha in 1981, the first reason given\nfor the\t levy of  15% duty  was that  it was  intended '  to\npromote\t a  measure  of\t restraint  in\tthe  consumption  of\nimported newsprint  and\t thus  help  in\t conserving  foreign\nexchange.\" This\t ground appears\t to be\tnot tenable  for two\nreasons.  Nobody   in  Government   had\t ever\ttaken\tinto\nconsideration the  effect of  the import of newsprint on the\nforeign exchange  reserve before  issuing  the\tnotification\nlevying 15  duty. Secondly,  no newspaper  owner can  import\nnewsprint directly.  News print\t import is canalised through\nthe  State  Trading  Corporation.  If  excessive  import  of\nnewsprint adversely  affects foreign  exchange reserve,\t the\nState Trading Corporation may reduce the import of newsprint\nand  allocate  lesser  quantity\t of  imported  newsprint  to\nnewspaper establishments.  There is.  however,\tno  need  to\nimpose import  duty with  a view to curbing excessive import\nof news\t print. It  is clear  that the\tGovernment  had\t not\nconsidered  vital   aspects  before  Withdrawing  the  total\nexemption which was being enjoyed by newspaper industry till\nMarch 1,  1981 and  industry 15\t duty on newsprint. [356D-H;\n357A-B]\n     24. Attention  was particularly  drawn to the statement\nof the Finance Minister that one of the considerations which\nprevailed upon\tthe Government\tto levy the customs duty was\nthat the  newspapers contained\t'piffles'. A  'piffle' means\nfoolish nonsense.  It appears  that one\t of the\t reasons for\nlevying the  duty was  that certain  writings in  newspapers\nappeared to  the Minister  as 'piffles'.  Such action is not\npermissible under the Constitution. [361H; 362A]\n     25. Matters  concerning the  intellect  and  ethics  do\nundergo fluctuations from era to era. The world of mind is a\nchanging one.  It is  not static.  The streams of literature\nand of\ttaste and  judgment in that sphere are not stagnant.\nThey have  a quality  of freshness  and vigour. They keep on\nchanging from  time to\ttime, from  place to  place and from\ncommunity to community. [868A]\n297\n       26.   It\t is  one  thing\t to  say  that\tin  view  of\nconsiderations relevant\t to A  public finance  which require\nevery citizen  to contribute  a reasonable  amount to public\nexchequer customs duty is leviable even on newsprint used by\nnewspaper industry  and an  entirely different\tthing to say\nthat the  levy is  imposed because  the newspapers generally\ncontain ''piffles''.  While the\t former may  be valid if the\ncirculation of newspapers is not affected prejudicially, the\nlatter is  impermissible under\tthe Constitution as the levy\nis being made on a consideration which is wholly outside the\nconstitutional limitations.  The Government  cannot arrogate\nto itself  the power  to prejudge  the nature of contents of\nnewspapers even\t before they  are printed.  Imposition of  a\nrestriction  of\t  the  above   kind  virtually\t amounts  to\nconferring on  the  Government\tthe  power  to\tprecensor  a\nnewspaper. The\tabove reason  given by\tthe Minister to levy\nthe customs duty is wholly irrelevant. [363B-D]\n      27  The argument\ton behalf of the Government that the\neffect of  the impugned\t levy i\t minimal cannot be accepted.\n[365C]\n      28. There are factors indicating that the present levy\nis heavy  and is perhaps heavy enough to affect circulation.\nThere appears  to be  a good  ground to\t direct the  Central\nGovernment to reconsider the matter afresh. [366C ;D]\n      Final  Report of\tthe International Commission for the\nStudy  of   Communication  Problems   pp.   100\t  add\t141;\nEncyclopaedia Britannica  [1962] Vol.  16;  p.\t339;  Second\nPress Commission Report(Vol. 11)pp. 182-183; Bennett Coleman\nJUDGMENT:\n<\/pre>\n
757; Sakal Papers(P) Ltd & Ors. v. The Union of India [1962]
\n3 S.C.R.  842; William\tB. Cammarane  v.  United  States  of
\nAmerica 358  US 498;  3 Led  2d 462;  Jeffery  Sole  Bigelow
\nCommonwealth of\t Virginia 421  us 809: L ed 2d60O at 610 and
\nRobert E.  Hannegan v.\tEsquire Inc.  327 U.S. 147: 90 L ed.
\n586, referred to.\n<\/p>\n
      Hamdard  Dawakhana (WakS)\t Lal Kuan  Delhi &  Anr.  v.
\nUnion of  India\t &  Ors.,<\/a>  [1960]  2  S.C.R.  671;  Lews  J.
\nYelentine v. F. J. Chrestensen 86 Law ed. 1292 and in re Sea
\nCustoms Act [1964] 3 S.C.R 787, distinguished.\n<\/p>\n
      Romesh  Thapper v.  The State  of Madras<\/a> [1950] S.C.R.
\n564; Honourable\t Dr. Paul  Borg olivier & Anr. v. Honourable
\nDr. Anton  Buttigieg  [1967]  A.C.  115\t (P.C.);  Thomas  v.
\nCollins [1944]\t323 U.S.  516 Martin  v. City  of  Struthers
\n11943] 319 U.S. 141, followed.\n<\/p>\n
      29.  The classification  of the newspapers into small,
\nmedium and  big newspapers  for purposes  of levying customs
\nduty is not violative of Article 14 of the Constitution. The
\nobject of  exempting small  newspapers from  the payment  of
\ncustoms duty  and levying 5% ad valorem (now Rs. 275 per MT)
\non medium  newspapers while levying full customs duly on big
\nnewspapers is  to assist  the small and medium newspapers in
\nbringing down  their cost  of production. Such papers do not
\ncommand\t large\t advertisement\trevenue.   Their   area\t  of
\ncirculation is\tlimited and  majority of  them are in Indian
\nlanguages  catering   to  rural\t sector.  There\t is  nothing
\nsinister in the
\n298<\/span>
\nobject nor  can it  be said  that the  classification has no
\nnexus with the object to be achieved. [366F-G]
\n     Bennett Coleman  & Co.  & Ors  v. Union of India & Ors.<\/a>
\n[1973] 2 S.C.R. 757. referred to.\n<\/p>\n
     30. Quashing  of the  impugned notification dated March
\n1, 1981,  which had repealed the notification dated July 15,
\n1977 under  which total exemption had been granted would not
\nrevive the  notification dated\tJuly IS,  1977. Once  an old
\nrule has  been substituted  by a new rule, it cases to exist
\nand it\tdoes not  get revived  when the\t new  rule  is\theld
\ninvalid. Since\tthe competence\tof the Central Government to
\nrepealer annul\tor supersede  the notification dated July 15
\n1977  is   not\tquestioned,  its  revival  on  the  impugned
\nnotifications being  held to  be void  would not  arise and,
\ntherefore, on  the quashing of the impugned notification the
\npetitioners would have to pay customs duty of 40% ad valorem
\nfrom March  1, 1981  to February  28 1982 and 40% ad valorem
\nplus Rs\t 1000 per  MT from March 1, 1982 onwards In addition
\nto it they would also be liable to pay auxiliary duty of 30%
\nad valorem during the fiscal year 1982-83 and auxiliary duty
\nof 50%\tad valorem  during the\tfiscal year  1983-8 i.\tThey
\nwould straightaway  be liable  lo pay  the whole  of customs
\nduty and  any other  duty levied  during the  current fiscal
\nyear also.  Such a  result cannot  be allowed  to ensue. The
\nchallenge to  the validity  of the  levy prescribed  by\t the
\ncustoms Tariffs\t Act,  1975  itself  cannot  be\t allowed  to
\nsucceed. [370F-H]\n<\/p>\n
     31.  The\tGovernment  has\t  failed  to  discharge\t its
\nstatutory   obligations\t   While   issuing    the   impugned
\nnotifications. the  Government is  directed to reexamine the
\nwhole  issue   after  taking   into  account   all  relevant
\nconsiderations for  the period\tsubsequent to March 1, 1981.
\nThe Government\tcannot be  deprived of\tthe legitimate\tduty
\npayable on imported newsprint. [371D-E]\n<\/p>\n
     32. Having\t regard to  the peculiar  features of  these
\ncases and  Article 32  of the  Constitution which imposes an
\nobligation on  this Court  to enforce the fundamental rights
\nand Article 142 of the Constitution which enables this Court
\nin the exercise of its jurisdiction to make such order as is
\nnecessary for  doing complete justice in any cause or matter
\nthe following order was made: [371D-E]\n<\/p>\n
     1. The  Government of India shall reconsider within six
\nmonths the  entire  question  of  levy\tof  import  duty  or
\nauxiliary duty\tpayable by  the petitioners  and  others  on
\nnewsprint used\tfor printing  newspapers,  periodicals\tetc.
\nwith effect  from March\t 1,1981. The  petitioners and others
\nwho are\t engaged in newspapers business shall make available
\nto the\tGovernment all\tinformation necessary  to decide the
\nquestion. [37G-H]\n<\/p>\n
     2. If  on such  reconsideration the  Government decides
\nthat there should be any modification in the levy of customs
\nduty or\t auxiliary duty\t with effect  from March  1,1981, it
\nshall take necessary steps to implement its decision. [372A]\n<\/p>\n
     3. Until  such redetermination  of the liability of the
\npetitioners and others is made, the Government shall recover
\nonly Rs.  550 per  MT on  imported newsprint towards customs
\nduty and auxiliary duty and shall not
\n299<\/span>
\ninsist upon  payment of duty in accordance wish the impugned
\nnotifications. The  concessions extended to medium and small
\nnewspapers may, however, A remain in force. [372C]\n<\/p>\n
     4. If, after such redetermination, it is found that any
\nof the\tpetitioners is\tliable to  pay any deficit amount by
\nway of\tduty, such  deficit amount  shall be  paid  by\tsuch
\npetitioner within  four months\tfrom the  date\ton  which  a
\nnotice of  demand  is  served  on  such\t petitioner  by\t the
\nconcerned authority. Any bank guarantee or security given by
\nthe petitioners\t shall be  available for  recovery  of\tsuch
\ndeficit amounts. [372D]\n<\/p>\n
     5. If, after such redetermination, it is found that any
\nof the\tpetitioners is\tentitled to  any refund, such refund
\nshall be  made by the Government within four months from the
\ndate of such redetermination.\n<\/p>\n
      6. A writ shall issue to the respondents. [372F] C
\n     B.N. Tiwari  v. Union  of India  &<\/a> ors, [1965] 2 S.C.R.
\n421, T.\t Devadasan v.  Union of India & Anr.<\/a> [1964] 4 S.C.R,
\n680 and\t Firm A.T.B. Mehtab Majid & Co. v. State of Madras &
\nAnr. [1963] Supp 2 S.C.R, 435 at 446. relied on.\n<\/p>\n
     Mohd. Shaukat  Hussain Khan  v. State of Andhra Pradesh<\/a>
\n[975] I\t S.C.R. 429,  Shri Mulchand  Odhavji. Rajkot Borough
\nMunicipality A.I.R. 1970 S.C. 685, Koteswar Vittal Kamath v.
\nK. Rangappa  Baliga & Co.<\/a> [1969] 3 S.C.R. 40 and The case of
\nState of Maharashtra etc. v. The Central Provinces Manganese
\nOrs Co. Ltd.. [1977] I S.C.R. 1000, distinguished.\n<\/p>\n
&
\n      ORIGINAL.\t JURISDICTION: Writ  Petition NOS.  2656-60.
\n2935-40, 2941-46,  2947-52, 3402, 3467, 3595, 3600-03, 3608,
\n3632, 3653,  3661, 3821,  3890-93, 4590-93,.  4613-15, 5222,
\n5576, 5600  02, 5726 27,  7410. 8459-62, 8825, 8944 of 1981,
\n1325 of 1982, 470-72 of 1984. T C. Nos. 23 of 1983 and 23 of
\n1984.\n<\/p>\n
\t\t\t    AND
\n\t    Writ Petitions Nos. 3114-17 of 1981
\n\t\t\t    WITH
\n\t    Writ Petitions Nos. 3393-93 of 1981
\n\t\t\t    WITH
\n\t      Writ Petitions No. 3853 of 1981
\n\t\t\t    WITH
\n\t    Writ Petitions Nos. 6446-47 of 1181
\n      (Under Article 32 of the Constitutions of India)
\n      A.K.  Sen, A.B.  Divan, F.S.  Nariman, K.K. Venugopal,
\nB.R. Agarwala,\tMiss Vijay  Lakshmi Menon,  A.K Ganguli P.H.
\nParekh, C.S.  Vaidyanalingam, D.N. Mishra, Pravin Kumar, KR.
\nNambiar, M.C.  Dhingra, Miss Sieta Vaidyalingam, P.C. Kapur,
\nPramod Dayal, CM
\n300<\/span>
\nNayar, S.S,  Munjral, KK  .Jain, S.K.  Gupta, A.l).  Sangar,
\nRanjan Mukherjee,  Sudip Sarkar,  P.K.\tGanguli,  Miss\tIndu
\nMalhotra,  PR.\t Seetharaman  and   V.\t Shekhar   for\t the
\npetitioners.\n<\/p>\n
     K. Parasaran,  Attorney General of India, Krishna Iyer,
\nP.A. Francis, A. Subba Rao, Dalveer Bhandari and R.N. Poddar
\nfor the respondents.\n<\/p>\n
     F.S. .Nariman,  S. Dholakia,  Soli J. Sorabjee, Anil B.
\nDivan J.B. Dadachandji S. Sukumaran, D.N. Mishra, KP. Dhanda
\npani, R.C.  Bhatia, P.C.  Kapur, A.N.  Haksar, O.C.. Mathur,
\nMiss Meera  Mathur,  Dr.  Roxna\t Swamy,\t Arun  Jetley,\tP.H.
\nParekh,\t Miss\tDivya  Bhalla\tand  Pinaki  Misra  for\t the
\nintervener
\n     The Judgment of the Court was delivered by
\n     VENKATARAMIAH, J.\n<\/p>\n
\t\t\t     I
\n\t\t\t Pleadings
\n     The majority  of Petitioners  in these  petitions filed
\nunder Article  32 of the Constitution are certain companies,
\ntheir share  holders and  their\t employees  engaged  in\t the
\nbusiness of  editing, printing\tand  publishing\t newspapers,
\nperiodicals, magazines\tetc Some of them are trusts or other
\nkinds  of  establishments  carrying  on\t the  same  kind  of
\nbusiness. They\tconsume in  the course\tof their  5 activity
\nlarge quantities  of newsprint\tand it is stated that 60% of
\nthe expenditure\t involved in.  the production of a newspaper
\nis utilised  for buying\t newsprint, a  substantial  part  of
\nwhich is  import ed  from abroad.  They challenge  in  these
\npetitions the  validity of  the imposition of import duty on
\nnewsprint imported  from abroad\t under\tsection\t 12  of\t the
\nCustoms Act,  1962 (Act\t 52 of 1962) read with section 2 and
\nHeading No.  48\/01\/21  Sub-heading  No.\t (2)  in  the  First
\nSchedule to  the Customs  Tariff Act,  1975 (Act 51 of 1975)
\nand the\t levy of  auxiliary duty under the Finance Act, 1981
\non newsprint  as  modified  by\tnotifications  issued  under
\nsection 25  of the  Customs Act, 1962 with effect from March
\n1, 1981.\n<\/p>\n
      The  first set of writ petitions challenging the above
\nlevy was  filed in May, 1981. At that time under the Customs
\nAct, 1962  read with  the Customs  Tariff Act, 1975, customs
\nduty of\t 40’% ad valorem was payable on newsprint. Under the
\nFinance Act,  1981 an  auxiliary duty  of 30% ad valorem was
\npayable\t in   addition\tto   the  customs   duty.   But\t  by
\nnotifications issued  under section  25 of  the Customs Act,
\n1962, the customs duty had been reduced to 10%
\n301<\/span>
\nad valorem  and auxiliary  duty had  been reduced  to 5%  ad
\nvalorem\t in   the  case\t  of  newsprint\t used  for  printing
\nnewspapers, books and A periodicals.\n<\/p>\n
     During  the  pendency  of\tthese  petitions  while\t the
\nCustoms Tariff\tAct, 1975 was amended levying 40% ad valorem
\nplus Rs.  1,000 per  MT as  customs duty  on newsprint,\t the
\nauxiliary duty\tpayable on all goods subject to customs duty
\nwas  increased\t to  50%   ad  valorem.\t But  by  reason  of
\nnotifications issued  under section  25 of  the Customs Act,
\n1962 customs  duty at  a flat  rate of\tRs. 550\t per MT\t and
\nauxiliary duty\tof Rs.\t275 per\t MT are\t now being levied on
\nnewsprint i.e. in all Rs. 825 per MT is now being levied.\n<\/p>\n
     The petitioners  inter alia contend that the imposition
\nof the\timport duty  has the  direct effect of crippling the
\nfreedom\t of   speech  and   expression\tguaranteed   by\t the
\nConstitution as\t it has\t led to the increase in the price of
\nnewspapers and\tthe inevitable\tconsequence of\treduction of
\ntheir circulation.  It is urged by them that with the growth
\nof population and literacy in the country every newspaper is
\nexpected to  register an  automatic growth of at least 5% in
\nits circulation\t every year  but  this\tgrowth\tis  directly
\nimpeded by  the increase  in the  price of newspapers. It is
\nfurther urged  that the\t method adopted\t by the Customs Act,
\n1962 and  the Customs  Tariff Act,  1975 in  determining the
\nrate of\t import duty has exposed the newspaper publishers to
\nthe Executive  interference. The  petitioners  contend\tthat
\nthere was  no need  to impose  customs duty  on news-  print
\nwhich had  enjoyed total  exemption from  its  payment\ttill
\nMarch 1,  1981, as  the foreign\t exchange position was quite
\ncomfortable. Under  the scheme\tin force,  the State Trading
\nCorporation of\tIndia sells  newsprint to  small  newspapers
\nwith a circulation of less than 15,000 at a price which does
\nnot include  any import\t duty, to  medium newspapers  with a
\ncirculation between  15,000 and\t 50,000\t at  a\tprice  which
\nincludes 5%  ad valorem duty (now Rs. 275 per MT) and to big
\nnewspapers having  a circulation  of over  50,000 at a price
\nwhich includes\tthe levy of 15% ad valorem duty (now Rs. 825
\nper MT).  It is stated that the classification of newspapers
\ninto big,  medium and  small newspapers is irrational as the
\npurchases on high seas are sometimes effected by a publisher
\nowning\tmany   newspapers  which  may  belong  to  different
\nclasses. The petitioners state that the enormous increase in
\nthe price  of newsprint\t subsequent to March 1, 1981 and the
\ninflationary economic  conditions which\t have led  to higher
\ncost of\t production have made it impossible for the industry
\nto bear\t the duty any longer. Since the capacity to bear the
\nduty  is   an\tessential   element   in   determining\t the
\nreasonableness
\n302<\/span>
\nOf the\tlevy, it  is urged, that the continuance of the levy
\nis violative of Article 19(1)(a) and Article 19(1)(g) of the
\nConstitution. It  is suggested\tthat the  imposition of\t the
\nlevy on\t large newspapers  by the  Executive is\t done with a
\nview to\t stifling circulation  of  news.  papers  which\t are
\nhighly critical\t of the\t performance of\t the administration.
\nIncidentally  the   petitioners\t have\tcontended  that\t the
\nclassification of  newspapers into small, medium and big for
\npurposes of  levy of  import duty is violative of Article 14
\nof the\tConstitution. The petitioners have appended to their
\npetitions a number of annexures in support of their pleas.\n<\/p>\n
      On  behalf of the Union Government a counter-affidavit
\nis filed.  The deponent\t of the\t counter-affidavit is  R. S.
\nSidhu, Under  Secretary to the Government of India, Ministry
\nof Finance,  Department of  Revenue. In\t paragraph 5  of the
\ncounter-affidavit it  is claimed  that\tthe  Government\t had
\nlevied the  duty in  the  public  interest  to\taugment\t the
\nrevenue of  the Government. It is stated that when exemption
\nis given from the customs duty, the Executive has to satisfy
\nitself\tthat   there  is  some\tother  corresponding  public
\ninterest justifying  such exemption  and that in the absence
\nof any\tsuch public  interest, the Executive has Do power to
\nexempt\tand  that  it  has  to\tcarry  out  the\t mandate  of
\nParliament which  has fixed  the rate of duty by the Customs
\nTariff Act, 1975. It is also claimed that the classification
\nof newspapers  for purposes of granting exemption is done in
\nthe  public   interest\thaving\t regard\t to   the   relevant
\nconsiderations. It  is denied that the levy suffers from any
\nmalafides. It  is pleaded  that since  every section  of the
\nsociety has  to bear its due share of the economic burden of
\nthe State,  levy of  customs duty  on  newsprint  cannot  be
\nconsidered to  be violative  of Article\t 19 (1)\t (a) of\t the
\nConstitution. But  regarding the  plea of  P the petitioners
\nthat the  burden  of  taxation\tis  excessive,\tthe  counter
\naffidavit states  that the  said fact  is irrelevant  to the
\nlevy of import duty on newsprint. In reply to the allegation
\nof the\tpetitioners that  there\t was  no  valid\t reason\t for
\nimposing the duty as the foreign exchange position was quite
\ncomfortable, the  Union Government  has stated that the fact
\nthat the foreign exchange position was quite comfortable was
\nno bar\tto the\timposition of  import duty.  It\t is  further
\npleaded that since the duty imposed is an indirect tax which
\nwould  be   borne  by\tthe  purchaser\t of  newspaper,\t the
\npetitioners cannot feel aggrieved by it.\n<\/p>\n
\t\t\t     II
\n      A\t Brief History\tof  the\t levy  of  Customs  Duty  on
\nNewsprint
\n\t   In order to appreciate the various contentions of
\nthe parties
\n303<\/span>
\nit is  necessary to  set out briefly the history of the levy
\nof customs A duty on newsprint in India.\n<\/p>\n
     Even though  originally under  the Indian\tTariff\tAct,
\n1934, there  was a  levy of  customs duty on imported paper,
\nexemption had  been granted  for import\t of white,  grey  or
\nunglazed newsprint from the levy of any kind of customs duty
\nin excess  of 1.57  per cent  ad valorem  but subsequently a
\nspecific import\t duty of  Rs. 50 per MT used to be levied on
\nnewsprint imports upto 1966. The question of levy of customs
\nduty on\t newsprint was\texamined by the Inquiry Committee on
\nSmall Newspapers.  In its  Report  submitted  in  1965\tthat
\nCommittee recommended  total  exemption\t of  newsprint\tfrom
\ncustoms duty  because in 90x\/Q of the countries in the world
\nno such\t levy was  being imposed because newspapers played a
\nvital role  in\ta  democracy.  On  the\tbasis  of  the\tsaid
\nrecommendation, the  Government of  India abolished  customs
\nduty on newsprint altogether in the year 1966 in exercise of
\nits power  under section  25 of\t the Customs  Act, 1962. The
\nprice of  newsprint was Rs. 725 per MT during the year 1965-
\n66 but there was a sudden spurt in its price in 1966-67 when
\nit rose\t to Rs.\t 1155 per  MT.\tDuring\tthe  period  1966-71
\nalthough almost all imported goods suffered basic regulatory
\nand auxiliary  customs duty,  there  was  no  such  levy  on
\nnewsprint in  spite of\tsevere foreign exchange crisis which
\narose on the devaluation of the Indian Rupee in 1966. But on
\naccount of  the financial difficulties which the country had
\nto face\t as a  consequence of  the Bangladesh war in 1971, a
\nregulatory duty of 2 1.2% was levied on newsprint imports to
\nmeet the difficult situation by the Finance Act of 1972. The
\nprice of  newsprint in the year 1971-72 was Rs. 1134 per MT.
\nThe above 2 1\/2% ad valorem regulatory duty was abolished by
\nthe Finance  Act  of  1973  P  and  was\t converted  into  5%
\nauxiliary duty\tby the\tsaid Act. This levy of 5% was on all
\ngoods including\t newsprint imported  into India. On April 1,
\n1974 under  the Import\tControl order issued under section 3
\nof the\tImports and  Exports Control  Act, 1947,  import  of
\nnewsprint by  private parties  was banned and its import was
\ncanalised through the State Trading Corporation of India. In
\n1975, the  Customs Tariff Act, 1975 came into force. By this
\nAct the\t Indian Tariff Act, 1934 was repealed. Under section
\n2 read\twith Heading  No. 48.01\/ 21 of the First Schedule to
\nthe Customs  Tariff Act,  1975, a levy of basic customs duty
\nof 40%\tad valorem  was imposed on newsprint. But in view of
\nthe exemption  granted in  the year  1966 which\t remained in
\nforce, the imposition made by
\n304<\/span>
\nthe Customs  Tariff Act,  1975 did not come into force. Only
\n5% auxiliary  duty which  was  levied  from  April  1,\t1973
\ncontinued to  be in  operation. In  the budget\tproposals of
\nJuly, 1977,  the 5% auxiliary duty was reduced to 2 1\/2% but
\nit was\ttotally abolished  by a\t notification  issued  under
\nsection 25  of\tthe  Customs  Act  on  July  15,  1977.\t The
\nnotification dated July IS, 1977 read as follows:\n<\/p>\n
\t\t       “NOTIFICATION
\n\t\t\t  CUSTOMS
\n\t      GSR No. In exercise of the powers conferred by
\n     sub section  (1) of section 25 of the Customs Act, 1962
\n     (52 of 1962) and in supersession of the notification of
\n     the Government  of lndia  in the  Department of Revenue
\n     and Banking  No. 72-Customs  dated the  18th June 1977,
\n     the Central  Government, being  satisfied\tthat  it  is
\n     necessary in  the public  interest\t so  to\t do,  hereby
\n     exempts newsprint,\t falling under\tsub heading  (2)  of
\n     Heading No.  48.01 21  of the  First  Schedule  to\t the
\n     Customs Tariff  Act, 1975\t(51 of\t1975), when imported
\n     into India,  from the whole of that portion of the duty
\n     of customs\t leviable thereon, which is specified in the
\n     said First Schedule.\n<\/p><\/blockquote>\n
\t\t\t\t\t\t       sd\/–\n<\/p><\/blockquote>\n
\t\t\t\t\t    (Joseph Dominic)
\n\t       Under. Secretary to the Government of India.”
\n    The\t price of  newsprint during the year 1975-76 was Rs.\n<\/p><\/blockquote>\n
3676 per  MT. The  total exemption from customs duty imposed
\non newsprint  was in  force  till  March  1,  1981.  In\t the
\nmeanwhile the Central Government notified increased salaries
\nand wages  to k\t employees of  newspaper  establishments  in
\nDecember, 1980\ton  the\t recommendations  contained  in\t the
\nPalekar Award. On March 1, 1981, the notification dated July
\n15, 1977  issued under\tsection 25  (1) of  the Customs Act,
\n1962  granting\t total\texemption   from  customs  duty\t was
\nsuperseded by the issue of a fresh notification which stated
\nthat the  Central Government  had  in  the  public  interest
\nexempted newsprint  imported  into  India  for\tprinting  of
\nnewspapers, books  and periodicals  from  so  much  of\tthat
\nportion of  the duty  of customs  leviable thereon as was in
\nexcess of  10\tper cent  ad valorem. The effect of the said
\nnotification was  that publishers  of newspapers  had to pay
\nten per\t cent ad valorem customs duty on imported newsprint.
\nBy another  notification  issued  at  about  the  same\ttime
\nauxiliary
\n305<\/span>
\nduty imposed  by the Finance Act of 1981 above 5 per cent ad
\nvalorem was  exempted in  the case  of\tnewsprint.  The\t net
\nresult .  was that  a total  duty of  IS per cent ad valorem
\ncame to be imposed on newsprint for the year 1981-82.\n<\/p>\n
     The explanation  given by\tthe Government in support of
\nthe above notification was as follows:\n<\/p>\n
     “Customs duty on newsprint:\n<\/p><\/blockquote>\n
\t     Originally, import of newsprint did not attract
\n     any customs duty. The Government of India abolished the\n<\/p><\/blockquote>\n
     -. customs\t duty on  newsprint after the devaluation of
\n     the  rupee\t  on  the   recommendation  of\tthe  Inquiry
\n     Committee on Small Newspapers (1965). The Committee had
\n     mentioned in  its report  that 80%\t of the newsprint in
\n     international trade  was free from customs duty and had
\n     recommended  complete  abolition  of  customs  duty  on
\n     newsprint. However,  during the  Bangladesh  crisis  in
\n     1971, a2.1\/2% ad valorem regulatory duty was imposed on
\n     newsprint imports.\t Subsequently, this was abolished on
\n     April 1,1973  and in  its place  a 5% auxiliary customs
\n     duty on  newsprint imports\t was proposed  in the  Union
\n     Budget Proposals for 1973-74. While no customs duty was
\n     levied on newsprint because of the exemption granted by
\n     Customs  Notification  No.\t 235\/F.No.527\/1\/76-CUS\t(TU)
\n     dated August  2,1976 of  the Department  of Revenue and
\n     Banking, 5%  auxiliary duty  was continued to be levied
\n     on\t imported  newsprint  till  July  15,1977  when\t the
\n     Ministry of  Finance,  Department\tof  Revenue  by\t its
\n     Notification No.  148\/F.No. Bud  (2) Cus\/77  dated July
\n     l5,1977 exempted  newsprint from  the whole  of duty of
\n     customs.  Prior   to  this\t the  Ministry\tof  Finance,
\n     Department of Revenue vide its Customs Notification No.
\n     72\/F. No.\tBud.  (2)  Cus\/77  dated  June\t18,1977\t had
\n     reduced the auxiliary duty to 2 1\/2%.\n<\/p><\/blockquote>\n
\t       In the Budget proposals for the current year,
\n     the Minister  of Finance has proposed a customs duty of
\n     15% on  newsprint imports\twhich has  become  effective
\n     from March\t 1,1981 because\t of the Customs Notification
\n     No. 24\/F. No. Bud (Cus)\/81 dated March 1,1981. This 15%
\n     customs  duty   constitutes  10%\tbasic  duty  and  5%
\n     auxiliary duty.”\n<\/p><\/blockquote>\n
306<\/span><\/p>\n
\t     The price of imported newsprint in March 1,1981
\n     was A  Rs. 4,560 per MT. The extract from the speech of
\n     the Finance  Minister in support of the imposition of a
\n     total 15%\tof duty\t (10% basic  duty and  5%  auxiliary
\n     duty) on newsprint is given below;\n<\/p><\/blockquote>\n
\t\t “The levy  of 15  per cent  customs duty on
\n     newsprint has  understandably attracted  a good deal of
\n     comment both  within the  House and  outside. As it has
\n     been explained  in the  Budget  speech,  this  levy  is
\n     intended to  promote a  measure  of  restraint  in\t the
\n     consumption of  imported newsprint\t and  thus  help  in
\n     conserving\t foreign  exchange.  In\t the  light  of\t the
\n     observations made\tby the Hon. Members in the course of
\n     the General  Debate on  the Budget\t I had\tassured\t the
\n     House that\t I  would  try\tto  work  out  a  scheme  of
\n     providing relief  to small\t and medium newspapers about
\n     which Members had voiced their special concern. We have
\n     now worked out the modalities of a scheme for affording
\n     relief to\tsmall  and  medium  newspapers.\t Under\tthis
\n     Scheme,  the   State  Trading  Corporation\t would\tsell
\n     imported newsprint to small newspapers at a price which
\n     would not\t! include  any amount  relatable  to  import
\n     duty. Medium  newspapers will  get their newsprint at a
\n     price which,  would  include  an  amount  relatable  to
\n     import duty  ‘of S\t per cent ad valorem. Big newspapers
\n     would, however, pay a price which will reflect the full
\n     duty burden  of 15\t per cent  ad valorem.\tThere  is  a
\n     definition of  small, medium  and big newspapers in the
\n     Press Council.  At the moment the present definition is
\n     that these\t which have  a circulation of 15,000 or less
\n     are classified  as small,\tthose with  a circulation of
\n     more than 15,000 but less than 50,000 are classified as
\n     medium and\t those with a circulation of over 50,000 are
\n     called big\t newspapers. Therefore, the small newspapers
\n     with a  circulation of 15,000 and less will not pay any
\n     customs duty  those with  a circulation  between 15,000
\n     and 50,000 will pay customs duty of 5 per cent and with
\n     a circulation  of over  50,000 will  pay 15  per  cent.
\n     Suitable financial\t arrangements will  be worked out as
\n     between’ Government  and the  State Trading Corporation
\n     to enable\tthe STC to give effect to these concessions.
\n     As Hon.  Members are  aware,  the\t  categorisation  of
\n     newspapers as small, medium and big in
\n307<\/span>
\n\t     terms of circulation is already well understood
\n     in the A industry and is being followed by the Ministry
\n     of\t Information   and  Broadcasting   for\tpurposes  of
\n     determining initial  allocation of\t newsprint  and\t for
\n     setting the rates of growth of consumption of newsprint
\n     by various\t newspapers from  year to  year.  The  State
\n     Trading Corporation  will, for  purposes of the present
\n     scheme, follow,  the same\tcategorisation of newspapers
\n     into small, medium and big. These arrangements will. in
\n     effect, provide  a relief\tof about  Rs. 5.86 crores to
\n     small and medium newspapers. “<\/p><\/blockquote>\n
      The  relevant provisions\tof the laws imposing customs
\nduty  and  auxiliary  duty  on\tnewsprint  which  arise\t for
\nconsideration are these:\n<\/p>\n
      Section 12 of the Customs Act, 1962 reads:
\n\t\t“12. Dutiable goods.-(1) Except as otherwise
\n     provided n\t in this  Act, or any other law for the time
\n     being in  force, duties  of customs  shall be levied at
\n     such rates as may be specified under the Customs Tariff
\n     Act, 1975\t(5l of\t1975), or any other law for the time
\n     being in force, on goods imported into or exported from
\n     India.\n<\/p><\/blockquote>\n
\t (2)………. ,
\n\t Section 2 of the Customs Tariff Act, 1975 reads:
\n\t\t “2. Duties  specified in  the Schedules  to
\n     levied.-The rates\tat which  duties of customs shall be
\n     levied under  the Customs\tAct, 1962,  are specified in
\n     the First and Second Schedules.”\n<\/p>\n
      The  relevant part of Chapter 48 of the First Schedule
\nto the\tCustoms Tariff\tAct, 1975  which deals\twith  import
\ntariff read in 1981 thus:\n<\/p>\n
“Heading  Sub-heading  No.\tRate  of  duty Duration
\n No.\t  and description    Standard Preferential when
\n\t  of article\t\t   Areas       rates of
\n\t\t\t\t\t       duty are
\n\t\t\t\t\t     protective
\n308<\/span>\n<\/p>\n
——————————————————-\n<\/p>\n
  (1)\t     (2)\t     (3)      (4)\t (5)\n<\/p>\n
——————————————————-
\n48.01\/21……………………………………………<\/p>\n
\n(2)  Newsprint containing\n     mechanical wood pulp\n     amounting to not less\n     than 70 per cent of\n     the fibre content\t\t40%\t     -\t      -\n     (excluding chrome,\n     marble, flint, poster,\n     stereo and art paper)\n<\/pre>\n
     ………………………………………………”
\n     Newsprint used  by the  petitioners  falls\t under\tSub-
\nheading (2)  of Heading No. 48.O1\/21 by Which 40% ad valorem
\ncustoms duty  is levied on it. By the Finance Act of 1982 in
\nsub-heading No.\t (2) of\t Heading No. 48.O1\/21, for the entry
\nin column  (3), the  entry “40% plus Rs. 1,000 per tonne was
\nsubstituted.\n<\/p>\n
      The  relevant part  of section  44 of the Finance Act,
\n1982 which levied an auxiliary duty of customs read thus:\n<\/p>\n
\t      “44. (1) In the case of goods mentioned in the
\n     First Schedule  to the  Customs Tariff  Act, or in that
\n     Schedule, as  amended from time to time, there shall be
\n     levied and collected as an auxiliary duty of customs an
\n     amount equal]  to thirty  per cent\t of the value of the
\n     goods as  determined in  accordance with the provisions
\n     of section\t 14 of\tthe Customs  Act, 1962\t(hereinafter
\n     referred to as the Customs Act).\n<\/p><\/blockquote>\n
     ………………………………………………”<\/p><\/blockquote>\n
     The above\trate of\t auxiliary duty\t was to\t be in force
\nduring the  financial year  1982-83 and\t it was\t open to the
\nGovernment to  grant exemption from the whole or any part of
\nit under section 25 of the Customs Act, 1962.\n<\/p>\n
     Section 45\t of the\t Finance Act, 1983 imposed fifty per
\ncent of\t the value  of the  goods as  auxiliary duty  in the
\nplace of thirty per cent imposed by the Finance Act, 1982.\n<\/p>\n
309<\/span><\/p>\n
      But  by notifications issued on February 28,1982 under
\nsection A 25 (2) of the Customs Act, 1962, which were issued
\nin supersession of the notification dated March 1, 1981, Rs.
\n550 per\t tonne was  imposed as customs duty on newsprint and
\nauxiliary duty\twas fixed  at Rs.  275 per tonne. In all Rs.
\n825 per\t tonne of newspaper has to be paid as duty. The high
\nsale price  of newsprint  had by that time gone up above Rs.
\n5,600 per tonne.\n<\/p>\n
      What  is of  significance is  that when the Government
\nwas of\tthe view that the total customs duty on newsprint in
\nthe public  interest should be not more than 15 per cent and
\nwhen these  writ petitions questioning even that 15 per cent
\nlevy were  pending in  a this Court, Parliament was moved by
\nthe Government\tspecifically to\t increase the  basic customs
\nduty on newsprint by Rs. 1,000 per tonne by the Finance Act,
\n1982. Hence  today if the Executive Government withdraws the
\nnotifications issued  under section 25 of the Customs Act, a
\ntotal duty  of 90 per cent plus Rs. 1000 per tonne would get
\nclamped on imported newsprint. D
\n      The  effect of  the imposition of 15 per cent duty may
\nto some\t extent have  led to  the increase  in the  price of
\nnewspapers  in\t 1981  and   it\t resulted  in  the  fall  in
\ncirculation of\tnewspapers. On\tthis point  the Second Press
\nCommission has made the following observations in its Report
\n(Vol. 1 page 18): E
\n     “Fall in circulation during 1981.\n<\/p>\n
\t\t94. To examine recent trends in, circulation
\n     and their relationship to recent trends in the economic
\n     environment,  the\t Commission’s  office  undertook  an
\n     analysis of  the Audit  Bureau  of\t Circulations  (ABC)
\n     certificates for  the period July 1980 to June 1981. It
\n     was found\tthat there  was a  decline in circulation in
\n     the period\t January-June 1981  compared to the previous
\n     six-month\tperiod\t in  the   case\t  of   dailies\t and
\n     periodicals.”\n<\/p>\n
     The two  important events\twhich had taken place during
\nthe period  between  July,  1980  to  June,  1981  were\t the
\nenforcement of\tthe Palekar  Award regarding  the wages\t and
\nsalaries  payable   in\tthe   newspaper\t industry   and\t the
\nimposition of  the customs  duty  of  15%  on  the  imported
\nnewsprint. Under  the newsprint\t policy\t of  the  Government
\nthere are three sources of supply of newsprint-(i) high
\n310<\/span>
\nseas sales, (ii) sales from the buffer stock built up by the
\nState  A   Trading  Corporation\t  which\t includes   imported
\nnewsprint  and\t (iii)\tnewsprint   manufactured  in  India.
\nImported newsprint  is an  important component\tof the total
\nquantity   of\t newsprint   utilised\tby   any   newspaper
\nestablishment.\n<\/p>\n
\t\t\t    III
\n     The Importance  of Freedom\t of Press  in  a  Democratic
\nsociety and the Role of Courts.\n<\/p>\n
     Our Constitution  does not\t use the expression ‘freedom
\nof press’  in Article  19 but  it is  declared by this Court
\nthat it\t is included  in Article  19(1)(a) which  guarantees
\nfreedom of  speech and\texpression. (See Brij Bhushan & Anr.
\nv. The State of Delhi<\/a>(l) and Bennett coleman & Co. & Ors. v.
\nUnion of lndia & ors.(2)
\n     . The  material part  of Article 19 of the Constitution
\nreads:\n<\/p>\n
      “19. (1) All citizens shall have the right-\n<\/p>\n
\t   (a) to freedom of speech and expression;\n<\/p>\n
…………………………………………………\n<\/p>\n
\t      (g) to practise any profession, or to carry on
\n     any occupation, trade or business,
\n      (2)  Nothing in  sub-clause (a)  of clause  (1)  shall
\naffect the  operation of  any existing\tlaw, or\t prevent the
\nState from  making any\tlaw, in\t so far\t as such law imposes
\nreasonable  restrictions   on  the  exercise  of  the  right
\nconferred by  the said\tsub-clause in  the interests  of the
\nsovereignty and\t integrity of  India, the  security  of\t the
\nState, friendly relations with foreign States, public order,
\ndecency or  morality, or  in relation  to contempt of court,
\ndefamation or incitement to an offence.\n<\/p>\n
     ……………………………….
\n      (6)  Nothing in sub-clause (g)of the said said  clause
\nshall affect  the operation of any existing law in so far as
\nit imposes, or prevent the State from making any law impos-
\n(1) (1950) S.C.R. 605.\n<\/p>\n
(2) [1973] 2 S.C.R. 757
\n311<\/span>
\n       ing,   in  the\tinterests  of  the  general  public,
\nreasonable  restrictions   on  the  exercise  of  the  right
\nconferred by the said sub-clause……………… ”\n<\/p>\n
      The  freedom of  press, as  one of  the members of the
\nConstituent Assembly  said, is one of the items around which
\nthe greatest  and the  bitterest of constitutional struggles
\nhave been waged in all countries where liberal constitutions
\nprevail.  The  said  freedom  is  attained  at\tconsiderable
\nsacrifice and  suffering and  ultimately it  has come  to be
\nincorporated in\t the various  written  constitutions.  James
\nMadison when  he offered  the Bill of Rights to the Congress
\nin 1789 is reported as having said: ‘The right of freedom of
\nspeech is  secured, the\t liberty of  the press\tis expressly
\ndeclared to be beyond the reach of this Government’. ‘(See 1
\nAnnals of  Congress (1789-96)  p. 141). Even where there are
\nno  written   constitutions,  there   are  well\t established
\nconstitutional\tconventions   or   judicial   pronouncements
\nsecuring the said freedom for the people The basic documents
\nof the United Nations and of some other international bodies
\nto which reference will be made hereafter give prominence to
\nthe said  right. The  leaders  of  the\tIndian\tindependence
\nmovement attached  special significance\t to the\t freedom  of
\nspeech and  expression which included freedom of press apart
\nfrom other  freedoms. During their struggle for freedom they
\nwere moved  by the  American Bill  of Rights  containing the
\nFirst Amendment\t to the Constitution of the United States of
\nAmerica which  guarnteed the  freedom of  the press.  Pandit
\nJawaharlal Nehru  in his  historic resolution containing the
\naims and  objects of  the Constitution\tto be enacted by the
\nConstituent Assembly  said  that  the  Constitutions  should
\nguarantee and secure to all the people of India among others
\nfreedom of  thought and expression. He also stated elsewhere
\nthat “I\t would rather  have a completely free press with all
\nthe dangers involved in the wrong use of that freedom than a
\nsuppressed or regulated press” (See D.R. Mankekar: The Press
\nunder Pressure\t(1973) p.  25). The Constituent Assembly and
\nits various committees and sub-committees considered freedom
\nof speech  and expression  which included  freedom of  press
\nalso as\t a precious  right. The Preamble to the Constitution
\nsays that  it is  intended to  secure to  all citizens among
\nothers liberty\tof thought,  expression, and  belief. It  is
\nsignificant that  in the  kinds of  restrictions that may be
\nimposed\t on   the  freedom  of\tspeech\tand  expression\t any
\nreasonable restriction\timpossible in the public interest is
\nnot one enumerated in clause (2)
\n312<\/span>
\nof Article  19. In Romesh Thappar v. The State of Madras and
\nBrij Bhushan’s<\/a>\tcase (supra) this Court firmly expressed its
\nview that  there could not be any kind of restriction on the
\nfreedom of  speech and expression other than those mentioned
\nin Article  19(2) and thereby made it clear that there could
\nnot be\tany interference  with that  freedom in\t the name of
\npublic interest.  Even when  clause (2)\t of Article  19\t was
\nsubsequently  substituted   under  the\tConstitution  (First
\nAmendment) Act,\t 1951 by  a new\t clause which  permitted the
\nimposition of  reasonable restrictions\ton  the\t freedom  of
\nspeech and  expression in  the interests  of sovereignty and
\nintegrity of  India, the  security of  the  State,  friendly
\nrelations with\tforeign states,\t public\t order,\t decency  or
\nmorality in  relation to  contempt of  court, defamation  or
\nincitement to  an offence,  Parliament\tdid  not  choose  to
\ninclude a  clause  enabling  the  imposition  of  reasonable
\nrestrictions in the public interest.\n<\/p>\n
      Article  19 of  the  Universal  Declaration  of  Human
\nRights,
\n 1948 declares\tvery one has the right to freedom of opinion
\nand expression; this right includes freedom to hold opinions
\nwithout\t interference\tand  to\t seek,\treceive\t and  impart
\ninformation and\t ideas through\tany media  and regardless of
\nfrontiers’.\n<\/p>\n
      Article  19 of the International Covenant on Civil and
\nPolitical Rights, 1966 reads:\n<\/p>\n
     “Article 19\n<\/p><\/blockquote>\n
     1.\t  Everyone shall  have the  right to  hold  opinions
\n\t  without interference.\n<\/p><\/blockquote>\n
     2.\t  Everyone  shall  have\t the  right  to\t freedom  of
\n\t  expression; this  right shall\t include freedom  to
\n\t  seek, receive\t and impart information and ideas of
\n\t  all kinds, regardless of frontiers, either orally,
\n\t  in writing  or in  print,  in\t the  form  of\tart,
\n\t  through any other media of his choice.\n<\/p><\/blockquote>\n
     3.\t  The  exercise\t  of  the  rights  provided  for  in
\n\t  Paragraph  2\tof  this  Article  carries  with  it
\n\t  special  duties   and\t responsibilities.   It\t may
\n\t  therefore be\tsubject to certain restrictions, but
\n\t  these shall  only be\tsuch as\t are provided by law
\n\t  and are necessary:\n<\/p><\/blockquote>\n
313<\/span><\/p>\n
     (a)  For  respect\tof  the\t rights\t or  reputations  of
\n\t  others;\n<\/p><\/blockquote>\n
     (b)  For the  protection of  national  security  or  of
\n\t  public order\t(order public),\t or of public health
\n\t  or morals.”<\/p><\/blockquote>\n
      Article  10 of the European Convention on Human Rights
\nreads:\n<\/p>\n
     “Article 10\n<\/p><\/blockquote>\n
     1.\t  Everyone has\tthe right  to freedom of expression.
\n\t  This right  shall include freedom to hold opinions
\n\t  and to  receive and  impart information  and ideas
\n\t  without  interference\t  by  public  authority\t and
\n\t  regardless of\t frontiers. This  Article shall\t not
\n\t  prevent States  from requiring  the  licensing  of
\n\t  broadcasting, television or cinema enterprises.\n<\/p><\/blockquote>\n
     2.\t  The exercise\tof these  freedoms, since it carries
\n\t  with\tit   duties  and  responsibilities,  may  be
\n\t  subject   to\t  such\t formalities,\t conditions,
\n\t  restrictions or  penalities as  are prescribed  by
\n\t  law and  are necessary in a democratic society, in
\n\t  the interests\t of national  security,\t territorial
\n\t  integrity or\tpublic safety, for the prevention of
\n\t  disorder or crime, for the protection of health or
\n\t  morals, for  the protection  of the  reputation or
\n\t  rights of others, for preventing the disclosure of
\n\t  information  received\t  in  confidence,   or\t for
\n\t  maintaining the  authority and impartiality of the
\n\t  judiciary.”<\/p><\/blockquote>\n
\t     The  First Amendment to the Constitution of the
\nUnited States of America declares:\n<\/p>\n
     “Amendment I
\n\t\t Congress shall\t make no  law respecting  an
\n     establishment of  religion,  or  prohibiting  the\tfree
\n     exercise thereof; or abridging the freedom of speech or
\n     of the  press, or\tthe right of the people peaceably to
\n     assemble, and  to petition the government for a redress
\n     of grievances.”<\/p><\/blockquote>\n
\t\t Frank C.  Newman and  Karel Vasak  in their
\n     article on ‘Civil
\n314<\/span>
\nand Political  Rights’ in  the International  Dimensions  of
\nHuman Rights  (Edited by  Karel Vasak) Vol. I state at pages
\n155-156 thus:\n<\/p>\n
     “(ii)     Freedom of  opinion, expression,\t information
\n\t  and  communication.  A  pre-eminent  human  right,
\n\t  insofar as  it allows\t everyone to  have  both  an
\n\t  intellectual and  political activity,\t freedom  of
\n\t  expression in\t the broad  sense actually  includes
\n\t  several specific  rights, all linked together in a
\n\t  “continuum”  made   increasingly  perceptible\t  by
\n\t  modern technological\tadvance. What  is  primarily
\n\t  involved is  the  classic  notion  of\t freedom  of
\n\t  opinion, that is to say, the right to say what one
\n\t  thinks and  not to be harassed for one’s opinions.
\n\t  This is  followed by freedom of expression, in the
\n\t  limited sense\t of the\t term,\twhich  includes\t the
\n\t  right to  seek, receive and impart information and
\n\t  ideas, regardless  of frontiers, either orally, in
\n\t  writing or  in print,\t in  the  form\tof  art,  or
\n\t  through any  other  media  of\t one’s\tchoice\tWhen
\n\t  freedom of  expression is  put to  use by the mass
\n\t  media, it  acquires an  additional  dimension\t and
\n\t  becomes freedom  of information.  A new freedom is
\n\t  being recognised which is such as to encompass the
\n\t  multiform requirements  of these various elements,
\n\t  while incorporating  their at\t once individual and
\n\t  collective character,\t their implications in terms
\n\t  of both  “rights” and\t “responsibilities”: this is
\n\t  the right  to communication,\tin  connection\twith
\n\t  which Unesco\thas recently undertaken considerable
\n\t  work with  a view  to its  further elaboration and
\n\t  implementation.”\n<\/p><\/blockquote>\n
     “Many Voices,  One World” a publication of UNESCO which
\n     contains  the   Final  Report   of\t the   International
\n     Commission for  the study\tof  Communication  Problems,
\n     presided over  by Sean  Mac Bride,\t in part  V  thereof
\n     dealing  with  ‘Communication  Tomorrow’  at  page\t 265
\n     emphasizes the  importance of  freedom  of\t speech\t and
\n     press in  the  preservation  of  human  rights  in\t the
\n     following terms:\n<\/p><\/blockquote>\n
     “IV. Democratization of Communication.
\n     Human Rights
\n     Freedom of\t speech, of the press, of information and of
\n     assembly are vital for the realization of human rights
\n315<\/span>
\n     Extension of  these communication freedoms to a broader
\n     individual and  collective right  to communicate  is an
\n     evolving principle\t in,  the  democratization  process.
\n     Among the\thuman rights  to be  emphasized are those of
\n     equality for  women and  between races.  Defence of all
\n     human rights is one of the media’s most vital tasks. We
\n     recommend:\n<\/p><\/blockquote>\n
     52.  All\tthose  working\tin  the\t mass  media  should
\n     contribute to  the fulfilment  of\thuman  rights,\tboth
\n     individual and  collective, in the spirit of the Unesco
\n     Declaration on  the mass  media and  the Helsinki Final
\n     Act, and  the International  Bill of  human Rights. The
\n     contribution of the media in this regard is not Only to
\n     foster  these   principles\t but   also  to\t expose\t all
\n     infringements, wherever  they  occur,  and\t to  support
\n     those whose  rights have  been neglected  or  violated.
\n     Professional associations\tand  public  opinion  should
\n     support journalists subjected to pressure or who suffer
\n     adverse  consequences  from  their\t dedication  to\t the
\n     defence of human rights.\n<\/p><\/blockquote>\n
\t\t53. The media should contribute to promoting
\n     the just  cause of\t peoples struggling  for freedom and
\n     independence and  their right  to\tlive  in  peace\t and
\n     equality  without\t foreign   interference.   This\t  is
\n     especially important  for all  oppressed  peoples\twho,
\n     while struggling  against\tcolonialism,  religious\t and
\n     racial discrimination,  are deprived  of opportunity to
\n     make their voices heard within their own countries.\n<\/p><\/blockquote>\n
\t     54. Communication needs in a democratic society
\n     should be\tmet by the extension of specific rights such
\n     as the  right to  be informed, the right to infrom, the
\n     right to  privacy, the  right to practicipate in public
\n     communication-all elements\t of a new concept, the right
\n     to communicate.  In developing  what might\t be called a
\n     new  era\tof  social   rights  we\t  suggest  all\t the
\n     implications of  the right\t to communicate\t to  further
\n     explored.\n<\/p><\/blockquote>\n
     Removal of Obstacles
\n\t       Communication, with its immense possibilities
\n     for influencing  the minds and behaviour of people, can
\n     be a  powerful means  of promoting\t democratization  of
\n     society and  of widening  public participation  in\t the
\n     decision-making
\n316<\/span>
\n     process. This  depends on\tthe structures and practices
\n     of the  media and\ttheir management  and to what extent
\n     they   facilitate\t broader   access   and\t  open\t the
\n     communication process  to a  free interchange of ideas,
\n     information  and\texperience  among   equals,  without
\n     dominance of discrimination.”<\/p><\/blockquote>\n
      In today’s free world freedom of press is the heart of
\nsocial and  political intercourse. The press has now assumed
\nthe role of the public educator making formal and non-formal
\neducation possible  in a  large scale  particularly  in\t the
\ndeveloping world, where television and other kinds of modern
\ncommunication are  not still  available for  all sections of
\nsociety. The  purpose of  the press is to advance the public
\ninterest by  publishing facts  and opinions  without which a
\ndemocratic electorate  cannot  make  responsible  judgments.
\nNewspaper being surveyors of news and views having a bearing
\non public  administration very\toften carry  material  which
\nwould not be palatable to governments and other authorities.
\nThe  authors   of  the\t articles  which  are  published  in
\nnewspapers have\t to be\tcritical of the action of government
\nin order  to expose  its weaknesses.  Such articles  tend to
\nbecome an  irritant or\teven a\tthreat to power. Governments
\nnaturally take\trecourse to  suppress newspapers  publishing
\nsuch  articles\tin  different  ways.  Over  the\t years,\t the
\ngovernments in\tdifferent  parts  of  the  world  have\tused
\ndiverse methods\t to keep  press\t under\tcontrol.  They\thave
\nfollowed carrotstick methods. Secret payments of money, open
\nmonetary grants\t and subventions,  grants of  lands,  postal
\nconcessions, Government advertisements, conferment of titles
\non editors and proprietors of newspapers, inclusion of press
\nbarons\tin   cabinet  and   inner  political  councils\tetc.
\nconstitute one\tmethod of  influencing the  press. The other
\nkind of\t pressure is  one of  using force against the press.
\nEnactment of  laws providing  for  precensorship,  seizures,
\ninterference with  the transit\tof newspapers  and demanding
\nsecurity deposit,  imposition of restriction on the price of
\nnewspapers, on\tthe number  of pages  of newspapers  and the
\narea that  can be devoted for advertisements, withholding of
\nGovernment  advertisements,   increase\tof   postal   rates,
\nimposition of  taxes on newsprint, canalisation of import of
\nnewsprint with\tthe object  of making  it unjustly  costlier
\netc. are some of the ways in which Governments have tried to
\ninterfere with\tfreedom of  press. It  is  with\t a  view  to
\nchecking such malpractices which interfere with free flow of
\ninformation, democratic\t constitutions all  over  the  world
\nhave made provisions guaran
\n317<\/span>
\nteeing the  freedom of speech and expression laying down the
\nlimits of  interference\t with  it.  lt\tis,  therefore,\t the
\nprimary duty  Of all the  national courts to uphold the said
\nfreedom and  invalidate all  laws or  administrative actions
\nwhich interfere\t with it,  contrary  to\t the  constitutional
\nmandate.\n<\/p>\n
      Thomas  1. Emerson  in his  article entitled ‘Toward a
\nGeneral\t Theory\t of  the  First\t Amendment’  (The  Yale\t Law
\nJournal, Vol.  72,877 at p. 906) while dealing with the role
\nof the\tJudicial institutions in a democratic society and in
\nparticular of  the apex\t court of  U.S.A. in  upholding\t the
\nfreedom of speech and expression writes:\n<\/p>\n
\t       “The objection that our judicial institutions
\n     lack the  political power\tand prestige  to perform  an
\n     active role in protecting freedom of expression against
\n     the  will\t of  the   majority  raises  more  difficult
\n     questions. Certainly judicial institutions must reflect
\n     the traditions,  ideals and assumptions, and in the end
\n     must respond to the needs, claims and expectiations, of
\n     the social\t order in which they operate. They must not,
\n     and ultimately  can not,  move too far ahead or lag too
\n     far behind. The problem for the Supreme Court is one of
\n     finding  the   proper  degree   of\t responsiveness\t and
\n     leadership, or  perhaps better,  of short-term and long
\n     term responsiveness.  Yet in  seeking out this position
\n     the Court\tshould not  under estimate the authority and
\n     prestige it  has achieved\tover the years. Representing
\n     the “con  science of  the community”  it  has  come  to
\n     possess a\tvery real  power to keep alive and vital the
\n     higher values  and\t goals\ttowards\t which\tour  society
\n     imperfectly strives Given its prestige, it would appear
\n     that the  power of\t the Court  to\tprotect\t freedom  of
\n     expression is  unlikely to\t be substantially  curtailed
\n     unless  the   whole   structure   of   our\t  democratic
\n     institutions is threatened.”<\/p><\/blockquote>\n
      What is stated above applies to the Indian courts with
\nequal  force-.\t In  Romesh   Thappar’s\t case  (supra)\tBrij
\nBhushan’s case\t(supra), Express Newspapers (Private) Ltd. &
\nAnr. v.\t The Union of India & Ors.,<\/a>(l) Sakal Papers (P) Ltd.
\n&. Ors.\t v. The Union of India(2) and Bennett Coleman’s case
\n(supra) this Court has very strongly pronoun-
\n(1) [1959] S.C.R. 12.\n<\/p>\n
(2) [1962] 3 S.C.R. 842.\n<\/p>\n
318<\/span><\/p>\n
ced in\tfavour of  the freedom\tof press. Of these, we shall
\nrefer to  some observations  made by  this Court  in some of
\nthem.\n<\/p>\n
      In  Romesh Thappar’s  case (supra)  this Court said at
\npage 602:\n<\/p>\n
\t      “(The freedom).. .lay at the foundation of all
\n     democratic organisations,\tfor without  free  political
\n     discussion on no public education, so essential for the
\n     proper  functioning   of  the   processes\tof   popular
\n     government, is  possible. A  freedom of  such amplitude
\n     might involve risks of abuse ……………… C'(nut)
\n     it is  better to leave a few of its noxious branches to
\n     their luxuriant  growth, than, by pruning them away, to
\n     injure  the   vigour  of\tthose  yielding\t the  proper
\n     fruits”.”<\/p><\/blockquote>\n
      In  Bennett Coleman’s  case (supra)  A.N. Ray, C.J. On
\nbehalf of the majority said at page 796 thus:\n<\/p>\n
\t      “The faith of citizen is that political wisdom
\n     and virtue\t will sustain  themselves in the free market
\n     of ideas,\tso long as the channels of communication are
\n     left open. The faith in the popular government rests on
\n     the old  dictum ‘let  the people have the truth and the
\n     freedom to\t discuss it  and  all  will  go\t well’.\t The
\n     liberty of\t the press  remains an ‘Ask of the Covenant’
\n     in very  democracy-…. The newspapers give ideas., The
\n     newspaper `give the people the freedom to find out what
\n     ideas are correct.”\n<\/p><\/blockquote>\n
\t       In the very same case, Methew, J, observed at
\n     page 818:\n<\/p><\/blockquote>\n
     “The constitutional  guarantee of the freedom of speech
\n     is not  so much  for the  benefit of the press as it is
\n     for the  benefit of  the public.  The freedom of speech
\n     includes within  its compass  the right of all citizens
\n     to read and be informed. In Time v. Hill (385 U.S. 374)
\n     the U.S. Supreme Court said:\n<\/p><\/blockquote>\n
\t\t “The constitutional guarantee of freedom of
\n     speech and\t press are  not for the benefit of the press
\n     so much as for the benefit of all the people.”
\n     In Griswold v. Connecticut (381 U.S. 479, 482) the U.S.
\n     Supreme Court  was of  the opinion\t that the  right  of
\n     freedom of speech and press includes not only the right
\n     to utter or to print, but the right to read.”\n<\/p><\/blockquote>\n
319<\/span><\/p>\n
     Justice Mathew  proceeded to  observe (at pp. 819-820):
\n     “Under Art. 41 of the Constitution the State has a duty
\n     to A  take effective steps to educate the people within
\n     limits  of\t  its  available  economic  resources.\tThat
\n     includes political education also.\n<\/p><\/blockquote>\n
     Public discussion\tof public  issues together  with the
\n     spreading of  information\tand  any  opinion  on  these
\n     issues  is\t  supposed  to\t be  the  main\tfunction  of
\n     newspaper. The  highest and  lowest  in  the  scale  of
\n     intelligence resort  to its  columns  for\tinformation.
\n     Newspapers is  the most  potent means for educating the
\n     people as\tit is  read by\tthose who  read nothing else
\n     and, in  politics, the  common man\t gets his  education
\n     mostly from newspaper.\n<\/p><\/blockquote>\n
     The affirmative  obligation of the Government to permit
\n     the import\t of newsprint  by expanding foreign exchange
\n     in\t that  behalf  is  not\tonly  because  press  has  a
\n     fundamental right\tto express  itself, but also because
\n     the 1  community  has  a  right  to  be  supplied\twith
\n     information and  the Government  a duty  to educate the
\n     people  within   the  limits   of\tits  resources.\t The
\n     Government may,  under cl.\t 3 of  the Imports (Control)
\n     Order, 1955  totally prohibit  the import\tof newsprint
\n     and thus disable any person from carrying on a business
\n     in newsprint,  if it  is in the general interest of the
\n     public not\t to expend  any\t foreign  exchange  on\tthat
\n     score. If\tthe affirmative obligation to expend foreign
\n     exchange and  permit the import of newsprint stems from
\n     the need  of the  community  for  information  and\t the
\n     fundamental duty of Government of educate the people as
\n     also to satisfy the individual need for self exression,
\n     it is  not for  the proprietor  of a newspaper alone to
\n     say  that\t he  will  reduce  the\tcirculation  of\t the
\n     newspaper and increase its page level, as the community
\n     has  an   interest\t  in   maintaining   or\t  increasing
\n     circulation of  the  newspapers.  It  is  said  that  a
\n     proprietor of  a newspaper\t has the freedom to cator to
\n     the needs\tof intellectual\t highbrows who may choose to
\n     browse in\trich pastures  and for that he would require
\n     more pages\t for a\tnewspaper and  that it\twould  be  a
\n     denial of his fundamental right if he were told that he
\n     cannot curtail  the circulation and increase the pages.
\n     A claim  to enlarge the volume of speech by diminishing
\n     the circulation
\n320<\/span>
\n     raises the\t problem of  reconciling the citizens’ right
\n     to unfettered  exercise of\t speech in  volume with\t the
\n     community’s right\tto  undiminished  circulation.\tBoth
\n     rights fall  within the ambit of the concept of freedom
\n     of speech as explained above.”<\/p><\/blockquote>\n
     The Second\t Press Commission  has explained the concept
\nof freedom of press in its Report (Vol. I pp. 34-35) thus:\n<\/p>\n
\t      “The expression ‘freedom of the press’ carries
\n     different meanings\t to different  people.\tIndividuals,
\n     whether professional  Journalists or  not, assert their
\n     right to  address the  public through the medium of the
\n     press. Some  people stress the freedom of the editor to
\n     decide what  shall be  published  in  his\tpaper.\tSome
\n     others emphasize  the right  of the  owners  to  market
\n     their publication.\t To Justice Holmes, the main purpose
\n     of the  freedom was  to prevent  all prior restraint on
\n     publication.\n<\/p><\/blockquote>\n
\t       16. The theory is that in a democracy freedom
\n     of expression  is indispensable as all men are entitled
\n     to participate  in the process of formulation of common
\n     decisions. Indeed,\t freedom of  expression is the first
\n     condition of  liberty. It occupies a preferred position
\n     in\t the  hierarchy\t of  liberties\tgiving\tsuccour\t and
\n     protection to  other liberties.  It has been truly said
\n     that it is the mother of all other liberties. The press
\n     as a medium of communication is a modern phenomenon. It
\n     has immense  power to advance or thwart the progress of
\n     civilization. Its freedom can be used to create a brave
\n     new world or to bring about universal catastrophe.\n<\/p><\/blockquote>\n
\t\t17. Freedom of speech presupposes that right
\n     conclusions are  more likely  to be  gathered out\tof a
\n     multitude\tof   tongues  than   through  any   kind  of
\n     authoritative selection.  It rests\t on  the  assumption
\n     that the  widest possible\tdissemination of information
\n     from  as  many  diverse  and  antagonistic\t sources  as
\n     possible is  essential to the welfare of the public. It
\n     is the  function of  the Press to disseminate news from
\n     as many  different sources\t and with  as many different
\n     facts and\tcolours as  possible. A\t citizen is entirely
\n     dependent on the Press for the quality, proportion and
\n321<\/span>
\n     extent of\this news  supply. In  such a  situation, the
\n     exclusive and  continuous advocacy of one point of view
\n     through  the   medium  of\t a  newspaper\twhich  holds
\n     monopolistic position is not conducive to the formation
\n     of healthy public opinion. If the newspaper industry is
\n     concentrated in  a few  hands, the\t chance of  an\tidea
\n     antagonistic to  the idea\tof the owners getting access
\n     to\t the   market\tbecomes\t  very\t remote.   But\t our
\n     constitutional law has been in different to the reality
\n     and  implication\tof  non-governmental   restraint  on
\n     exercise  of   freedom  of\t  speech  by  citizens.\t The
\n     indifference becomes  critical when comparatively a few
\n     persons are  in a\tposition to  determine not  only the
\n     content of\t information but also its very availability.<\/p><\/blockquote>\n
     The assumption  in a  democratic  set-up  is  that\t the
\n     freedom  of  the  press  will  produce  a\tsufficiently
\n     diverse Press  not only  to satisfy the public interest
\n     by throwing  up a\tbroad spectrum\tof views but also to
\n     fulfill the  individual interest  by enabling virtually
\n     everyone with  a distinctive opinion to find some place
\n     to express it.” D
\n      The  petitioners have heavily relied upon the decision
\nof  this   Court  in  sakal’s  case  (supra)  in  which\t the
\nconstitutionality of  the Newspaper  (Price and\t Page)\tAct,
\n1956 and  the Daily  Newspaper (Price  and Page) Order, 1960
\narose for consideration. The petitioner in that petition was
\na private limited company engaged in the business inter alia
\nof publishing  daily and  weekly newspapers in Marathi named
\n‘Sakal’\t from\tPoona.\tThe  newspaper\t‘Sakal”\t had  a\t net
\ncirculation of\t52,000 copies on week days and 56,000 copies
\non Sundays.  The daily edition contained six pages a day for
\nfive days  in a week and four pages on one day. This edition
\nwas priced  at 7  paise. The Sunday edition consisted of ten
\npages and  was priced at 12 paise. About 40% of the space in
\nthe newspaper  was taken  up by\t the advertisements  and the
\nrest by\t news, views and other usual features. The newspaper
\n(price and  page) Act,\t1956 regulated\tthe number  of pages
\naccording to  the price\t charged, prescribed  the number  of
\nsupplements to\tbe published  and prohibited the publication
\nand sale  of newspapers in contravention of the Act. It also
\nprovided  for  the  regulation\tof  the\t size  and  area  of
\nadvertising matter  contained in a newspaper. Penalties were
\nprescribed for\tcontravention of  that Act or the Order made
\nthereunder. As\ta result  of the enforcement of that Act, in
\norder to  publish 34  pages on\tsix days in a week as it was
\ndoing
\n322<\/span>
\nthen, the  petitioner had to raise the price from 7 paise to
\n8 paise\t per day  and if  it did  not wish  to increase\t the
\nprice, it had to reduce the total number of pages to 24- The
\npetitioner which  could publish any number of supplements as
\nand when  it desire  to do  so before  the Order impugned in
\nthat case  was passed  could  do  so  thereafter  only\twith
\npermission  of\t the  Government.   The\t contention  of\t the
\npetitioner in  that case  was that  the impugned Act and the
\nimpugned  Order\t were  pieces  of  legislation\tdesigned  to
\ncurtail the  circulation of the newspaper as the increase in
\nthe  price   of\t the   paper  would   adversely\t affect\t its
\ncirculation and they directly interfered with the freedom of
\nthe press.  The validity  of these pieces of legislation was
\nchallenged on  the ground  that they violated Article 19 (1)\n<\/p>\n
(a) of\tthe Constitution. The Union Government contested the
\npetition. It  pleaded that  the impugned   Act and the Order
\nhad been passed with a view to preventing unfair competition
\namong newspapers and also with a view to preventing the rise
\nof monopolistic\t combines so that newspapers might have fair
\nopportunities of  free discussion.  It was  also con  tended
\nthat the impugned Act and the impugned Order had been passed
\nin the public interest and the petitioner’s business being a
\ntrading activity  falling under\t Article 19  (1) (g)  of the
\nConstitution any restriction imposed by the said Act and the
\nOrder was  protected by\t Article 19 (6) of the Constitution.
\nThis Court negativing the contention of the Union Government
\nobserved at page 866 thus:\n<\/p>\n
\t\t “Its object  thus is  to regulate something
\n     which, as\talready stated,\t is directly  related to the
\n     circulation of  a newspaper.  Since  circulation  of  a
\n     newspaper is  a part  of the right of freedom of speech
\n     the Act  must be  regarded as  one directed against the
\n     freedom of\t speech. It  has selected  the fact or thing
\n     which is  an  essential  and  basic  attribute  of\t the
\n     conception of  the freedom\t of speech viz. the right to
\n     circulate one’s views to all whom one can reach or care
\n     to reach  for the imposition of a restriction. It seeks
\n     to achieve\t its object  of enabling what are termed the
\n     smaller newspapers\t to secure larger circulation by pro
\n     visions which without disguise are aimed at restricting
\n     the circulation  of what  are termed  the larger papers
\n     with better  financial strength-  The impugned  law for
\n     from being\t one, which merely interferes with the right
\n     of freedom\t   speech  incidentally,  does\tso  directly
\n     though it
\n323<\/span>
\n     seeks to  achieve the end by purporting to regulate the
\n     business aspect  of a  newspaper. Such  a course is not
\n     permissible and  the courts  must be  ever vigilant  in
\n     guarding perhaps  the most precious of all the freedoms
\n     guaranteed by  our Constitution. The reason for this is
\n     obvious.  The  freedom  of\t speech\t and  expression  of
\n     opinion is\t of paramount  importance under a democratic
\n     Constitution which envisages changes in the composition
\n     of legislatures  and governments and must be preserved.
\n     No doubt,\tthe  law  in  question\twas  made  upon\t the
\n     recommendation of\tthe Press  Commission but  since its
\n     object is\tto affect  directly the right of circulation
\n     of news  papers which would necessarily undermine their
\n     power to  influence public\t opinion it  cannot stat  be
\n     regarded as  a dangerous  weapon which  is\t capable  of
\n     being used against democracy itself.”<\/p><\/blockquote>\n
      Continuing further the Court observed at pages 867 and
\n868 thus:\n<\/p>\n
\t       “It was argued that the object of the Act was
\n     to\t prevent   monopolies  and   that   monopolies\t are
\n     obnoxious. We  will assume\t that monopolies  are always
\n     against public  interest and  deserve to be suppressed.
\n     Even  so,\t upon  the  view  we  have  taken  that\t the
\n     intendment of  the Act  and the  direct. and  immediate
\n     effect of\tthe Act\t taken along with the impugned order
\n     was to  interfere with  the freedom  of circulation  of
\n     newspapers the  circumstance that\tits  object  was  to
\n     suppress monopolies  and prevent unfair practices is of
\n     no assistance.\n<\/p><\/blockquote>\n
\t\t The legitimacy of the result intended to be
\n     achieved\tdoes not  necessarily imply that every means
\n     to achieve\t it is\tpermissible for\t even if  the end is
\n     desirable and  permissible, the means employed must not
\n     transgress the limits laid down by the Constitution, if
\n     they directly  impinge on any of the fundamental rights
\n     guaranteed by the Constitution it is no answer when the
\n     constitutionality\t  of  the measure is challenged that
\n     apart  from   the\tfundamental   right  infringed\t the
\n     provision is otherwise legal.”<\/p><\/blockquote>\n
324<\/span><\/p>\n
      We  have so  far seen the importance of the freedom of
\nspeech and  expression which  includes the freedom of press.
\nWe shall  now proceed  to consider whether it is open to the
\nGovernment to  levy any\t tax on\t any of\t the aspects  of the
\npress industry.\n<\/p>\n
\t\t\t     IV
\n\t\t Do newspapers have immunity from taxation ?
\n      Leaving  aside small  newspaper  establishments  whose
\ncirculation may\t be less than about 10,000 copies a day, all
\nother\tbigger\t  newspaper    establishments\t have\t the
\ncharacteristics of  a large  industry. Such bigger newspaper
\nconcerns are  mostly situated in urban areas occupying large
\nbuildings which have to be
\n provided  with\t all  the  services  rendered  by  municipal
\nauthorities. They  employ  hundreds  of\t employees.  Capital
\ninvestment in  many of\tthem is\t in the order of millions of
\nrupees. Large  quantities of printing machinery are utilised
\nby them, a large part of which is imported from abroad. They
\nhave to\t be provided  with telephones,\tteleprinters, postal
\nand telegraphic\t services,  wireless  communication  systems
\netc. Their  newspapers have  to\t be  transported  by  roads,
\nrailways and  air services.  Arrangements  for\tsecurity  of
\ntheir property\thave to\t be  made.  The\t Government  has  to
\nprovide many  other services  to them. All these result in a
\nbig drain on the financial resources of the State as many of
\nthese
\n  services   are  heavily  subsidized.\tNaturally  such\t big
\nnewspaper organisations\t have to  contribute their due share
\nto the public exchequer. They have to bear the common fiscal
\nburden like all others.\n<\/p>\n
      While  examining the  constitutionality of a law which
\nis  alleged   to  contravene  Article  19  (1)\t(a)  of\t the
\nConstitution, we  cannot, no  doubt, be solely guided by the
\ndecisions of  the Supreme  Court of  the  United  States  of
\nAmerica. But  in order to understand the basic principles of
\nfreedom of  speech and\texpression and\tthe  need  for\tthat
\nfreedom in  a democratic  country, we  may  take  them\tinto
\nconsideration. The  pattern of\tArticle 19  (1) (a)  and  of
\nArticle 19 (1) (g) of our constitution is different from the
\npattern of  the First Amendment to the American Constitution
\nwhich is almost absolute in its terms. The rights guaranteed
\nunder Article  19 (1)  (a) and\tArticle 19  (1) (g)  of\t the
\nConstitution   are to be read along with clauses (2) and (6)
\nof Article 19
\n325<\/span>
\nwhich carve  out areas in respect of which valid legislation
\ncan be A made. It may be noticed that the newspaper industry
\nhas not\t been granted  exemption from  taxation\t in  express
\nterms. On  the other  hand Entry 92 of List I of the Seventh
\nSchedule to  the Constitution  empowers Parliament  to\tmake
\nlaws levying  taxes on sale or purchase of newspapers and on
\nadvertisements published therein.\n<\/p>\n
      It  is relevant  to refer\t here to a few extracts from
\nthe speech  of Shri  Deshbandhu Gupta  on the  floor of\t the
\nConstituent Assembly  opposing the  provisions in  the Draft
\nConstitution which authorised the State Legislatures to levy
\nsales tax on sale of newspapers and tax on advertisements in
\nnewspapers. He said: C
\n\t     “…… No one would be happier than myself and
\n     my friends belonging to the press, if the House were to
\n     decide today that newspapers will be free from all such
\n     taxes. Of\tcourse that  is what it should be because in
\n     no free  country with  a democratic  Government we have
\n     any such  taxes as\t the sales  tax or the advertisement
\n     tax   …………………………   I\tclaim\tthat
\n     newspapers do deserve a distinctive treatment. They are
\n     not an industry in the sense that other industries are.
\n     This has  been recognised all over the world. They have
\n     a mission\tto perform.  And I  am glad  to say that the
\n     newspapers in  India have\tperformed  that\t mission  of
\n     public service  very creditably  and we  have reason to
\n     feel proud\t of it.\t I would,  there. fore,\t expect this
\n     House and\tmy friend  Mr. Sidhva  to bear it in mind at
\n     the time  when God forbid any proposal comes before the
\n     Parliament for  taxation. That  would be  the time\t for
\n     them to oppose it.\n<\/p>\n
\t      Sit, after all, this is an enabling clause. It
\n     does  not\t say  that   there  shall   be\t sales\t and
\n     advertisement tax\timposed on  newspapers. It  does not
\n     commit the\t House today  to the  imposition of a tax on
\n     the sales\tof or  a tax  on advertisements published in
\n     newspapers,  All\tthat  we  have\temphasised  is\tthat
\n     newspapers as  such  should  be  taken  away  from\t the
\n     purview of\t the provincial\t Governments and  brought to
\n     the Central List so that if at all at any time a tax is
\n     to be  imposed on\tnewspapers it  should be done by the
\n     representatives of whole country realising the full
\n326<\/span>
\n      implications  of their  action. It  should not  be  an
\nisolated A  act\t on  the  part\tof  some  Ministry  of\tsome
\nprovince. That\twas the\t fundamental basis  of our amendment
\n………………………………………………\t  If
\ntoday all  news papers\tincluding those published from Delhi
\nare opposing  the imposition  of these\ttaxes with one voice
\nand demanding  their inclusion\tin the Central List, they do
\nso, not\t because it  is a question of saving some money, but
\nbe cause  the fundamental  question of\tthe liberty  of\t the
\npress is  involved. By\tadvocating  their  transfer  to\t the
\nCentral List we are prepared to run the risk of having these
\ntakes imposed  in Delhi,  and in  other provinces which have
\nnot sought  to impose  such taxes so far. But we do not want
\nto leave  it to\t the Provinces\tso that\t the liberty  of the
\npress remains  unimpaired. We  have faith in the Parliament:
\nwe have faith in the collective wisdom of the country and we
\nhave no doubt that when this matter is viewed in the correct
\nperspective, there  will be  no such  taxes imposed  on\t the
\nnewspapers, but\t we have  not got  that much  faith  in\t the
\nProvincial Ministries.\tIt is in that hope and having a full
\nrealisation of\tthe situation  that we\thave  agreed,  as  a
\nmatter of  compromise, or  should I say as a lesser evil, to
\nhave these  two taxes transferred from the Provincial to the
\nCentral List.”\t(Vide Constituent Assembly Debates .Vol. IX,
\npp. 1175-1180 dated September 9, 1949).\n<\/p>\n
      Ultimately  the power  to levy  taxes on\tthe sale  or
\npurchase  of   newspapers  and\ton  advertisement  published
\ntherein was conferred on Parliament by Entry 92 of List I of
\nthe Seventh  Schedule to  the Constitution.  This shows\t the
\nanxiety on  the part  of the  framers of our Constitution to
\nprotect the  newspapers against\t local pressures.  But they,
\nhowever,  did\tnot  agree  to\tprovide\t any  constitutional
\nimmunity against  such taxation.  The power  to levy customs
\nduties on  goods imported into the country is also entrusted
\nto Parliament  by Entry 83 in List I of the Seventh Schedule
\nto the Constitution.\n<\/p>\n
      On the power of t e Government in the United States of
\nAmerica to levy taxes on and to provide for the licensing of
\nnews papers,  Corpus Juris  Sequndum (Vol.  16) says at page
\n1132 as follows:\n<\/p>\n
327<\/span><\/p>\n
     “213. (13), Taxing and Licensing
\n\t\t“The Constitutional guaranties of freedom of
\n     speech and\t of the\t press are  subject  to\t the  proper
\n     exercise of  the government  s power  of taxation,\t and
\n     reasonable license\t fees may  be imposed  on trades  or
\n     occupations  concerned   with  the\t  dissemination\t  of
\n     literature or ideas.<\/p><\/blockquote>\n
      As  a general  rule, the\tconstitutional guaranties of
\nfreedom of speech and of the press are subject to the proper
\nexercise of  the government’s power of taxation, so that the
\nimposition of  uniform and  non-discriminatory taxes  is not
\ninvalid as  applied to\tpersons or  organisations engaged in
\nthe  dissemination  of\tideas  through\tthe  publication  or
\ndistribution of\t writing. The  guaranty of  freedom  of\t the
\npress does  not forbid\tthe taxation  of money\tor  property
\nemployed in  the publishing  business, or  the imposition of
\nreasonable  licenses   and  license   fees  on\t trades\t  or
\noccupations concerned  with the\t dissemination of literature
\nor ideas.\n<\/p>\n
      A\t license or  license tax  to permit the enjoyment of
\nfreedom of  speech and freedom of press may not, however, be
\nrequired as  a form  of censorship, and where the purpose of
\nthe tax\t or license  is not  for revenue,  or for reasonable
\nregulation, but\t is a  deliberate and  calculated device  to
\nprevent, or  to curtail the opportunity for, the acquisition
\nof knowledge  by the people in respect of their governmental
\naffairs,   the\t  statute   or\t  ordinance   violates\t the
\nconstitutional guaranties,  and particularly  the Fourteenth
\nAmendment to  the federal  Constitution. While\tan ordinance
\nimposing  a  tax  on,  and  requiring  a  license  for,\t the
\nprivilege of  advertising by  distributing books, circulars,
\nor pamphlets has been held valid, an ordinance requiring the
\npayment of  a license  tax by  street vendors or peddlers is
\ninvalid\t as   applied  to   members  of\t a  religious  group
\ndistributing  religious\t  literature  as   part\t  of   their
\nactivities, at\tleast where  the fee is not merely a nominal
\none   imposed\t to   defray   the   cost   of\t regulation,
\nnotwithstanding\t the   ordinance  is  non-discriminatory.  A
\ngovernmental regulation\t requiring a license to solicit, for
\ncompensation, memberships  in  organizations  requiring\t the
\npayment of dues is invalid,
\n328<\/span>
\n     where it fixes indefinite standards for the granting of
\na license to an applicant. A provision of a retail sales tax
\nact providing  that a retailer shall not advertise as to the
\nnon-collection of sales tax from purchasers does not deprive
\nretailers of the constitutional right of free speech.”\n<\/p>\n
       The   above  subject   is  summarised   in   American
\nJurisprudence 2d (Vol. 16) at page 662 thus:\n<\/p>\n
\t\t “Speech can  be effectively  limited by the
\n     exercise of that taxing power. Where the constitutional
\n     right to  speak is\t sought to  be deterred by a state’s
\n     general taxing  program; due  process demands  that the
\n     speech be\tunencumbered until  the state  comes forward
\n     with sufficient  proof to\tjustify its  inhibition. But
\n     constitutional guaranties are not violated by a statute
\n     the controlling purpose of which is to raise revenue to
\n     help defray  the current  expenses of  state government
\n     and state\tobligations, and which shows no hostility to
\n     the  press\t nor  exhibits\tany  purpose  or  design  to
\n     restrain the press.”<\/p><\/blockquote>\n
      It  may be  mentioned here that the First Amendment to
\nthe Constitution  of the  United States of America is almost
\nin absolute  terms. It\tsays that the Congress shall make no
\nlaw abridging  the freedom  of the  press. Yet\tthe American
\nCourts have  recognised the power of the State to levy taxes
\non newspaper  establishments, of course, subject to judicial
\nreview by  courts by  the application  of the due process of
\nlaw principle.\t“Due process  of law  does  not\t forbid\t all
\nsocial control;\t but it\t protects personal  liberty  against
\nsocial control,\t unless such  social control  is  reasonable
\neither because\tof a  constitutional exercise  of the police
\npower, or  of the  power of  taxation or  of  the  power  of
\neminent domain”.  If  any  legislation\tdelimiting  personal
\nliberty is  held  to  be  outside  of  all  three  of  these
\ncategories, it\tis taking  away of  personal liberty without
\ndue process  of law  and  is  unconstitutional.\t The  police
\npower, taxation\t and eminent. domain are all forms of social
\ncontrol which  are essential  for peace and good government.
\n‘The police  power is  the legal capacity of the severeignty
\nor one\tof its\tgovernmental agents, to delimit the personal
\nliberty\t of  persons  by  means\t which\tbear  a\t substantial
\nrelation to the end to be accomplished for the protection of
\nsocial interests  which reasonably need protection. Taxation
\nis the legal capacity of sovereignty or one of its govern
\n329<\/span>
\nmental agents  to exact\t or impose  a charge upon persons or
\ntheir property for the support of the government and for the
\npayment\t for   any  other   Public  purposes  which  it\t may
\nconstitutionally carry\tout. Eminent  domain  is  the  legal
\ncapacity of  sovereignty or  one of its governmental agents,
\nto take\t private property for public use upon the payment of
\njust compensation.’  It is  under the  above said  sovereign
\npower of  taxation the\tgovernment is  able to levy taxes on
\nthe publishers of newspapers too, subject to judicial review
\nby  courts   notwithstanding  the   language  of  the  First
\nAmendment which is absolute in terms. In India too the power
\nto levy\t tax even  on persons  carrying on  the business  of
\npublishing newspapers  has got\tto be  recongnised as  it is
\ninherent in the very concept of government. But the exercise
\nof such\t power should,\thowever, be  subject to\t scrutiny by
\ncourts. Entry  92 of  List I  of the Seventh Schedule to the
\nConstitution expressly suggests the existence of such power.\n<\/p>\n
       Thomas  I.  Emerson  in\this  article  on  the  First
\nAmendment (The Yale Law Journal, Vol. 72 at p. 941, has made
\ncertain relevant  observations on  the power of the State to
\nimpose taxes and economic regulations on newspaper industry.
\nHe says:\n<\/p>\n
\t     “(a) Taxation and Economic Regulation.
\n\t\t Regular tax measures, economic regulations,
\n     social welfare  legislation and similar provisions may,
\n     of course,\t have some effect upon freedom of expression
\n     when applied  to persons  or organisations\t engaged  in
\n     various forms of communication. But where the burden is
\n     the same  as that\tborne by others engaged in different
\n     forms of  activity, the  similar impact  on  expression
\n     seems clearly insufficient to constitute an “abridging”
\n     of freedom\t of expression.\t Hence a  general  corporate
\n     tax,   wage   and\t hour\tor   collective\t  bargaining
\n     legislation,  factory   laws  and\t the  like   are  as
\n     applicable\t to   a\t corporation  engaged  in  newspaper
\n     publishing as  to other  business organisations. On the
\n     other hand,  the use  of such measures as a sanction to
\n     diminish  the  volume  Of\texpression  or\tcontrol\t its
\n     content  would   clearly\tbe   as\t  impermissible\t  an
\n     “abridgment” as  direct criminal prohibitions. The line
\n     may sometimes  be difficult to draw, the more so as the
\n     scope of the regulation is narrowed.\n<\/p><\/blockquote>\n
\t\tTwo principles for delineating the bounds of
\n     “abridg-<\/p><\/blockquote>\n
330<\/span><\/p>\n
      ing”  may be  stated. First,  as a general proposition
\nthe validity  of the  measure may be tested by the rule that
\nit must\t be equally  applicable to  a  substantially  larger
\ngroup than that engaged in expression. Thus a special tax on
\nthe press  alone, or a tax exemption available only to those
\nwith particular\t political views  or associations, would not
\nbe permitted. second, neither the substantive nor procedural
\nprovisions of  the measure,  even though  framed in  general
\nterms,\tmay  place  any\t substantial  burden  on  expression
\nbecause of  their peculiar  impact in  that area.  Thus\t the
\nenforcement of\ta tax  or corporate  registration statute by
\nrequiring disclosure  of membership in an association, where
\nsuch  disclosure   would  substantially\t impair\t freedom  of
\nexpression, should  be\tfound  to  violate  first  amendment
\nprotection. (Underlining by us).\n<\/p>\n
      This  view appears to have been accepted by our Second
\nPress Commission  in its  Report (Vol.\tI) at  page 35.\t The
\nCommission observes:\n<\/p>\n
\t\t “21. Economic and tax measures, legislation
\n     relating to  social welfare  and wages,  factory  laws,
\n     etc., may\thave some  effect upon\tfreedom of the Press
\n     when applied  to persons  or  institutions\t engaged  in
\n     various forms  of communication.  But where  the burden
\n     placed on\tthem is\t the same  as that  borne  by  other
\n     engaged in\t different forms  of activity,\tit does\t not
\n     constitute abridgment  of freedom of the Press. The use
\n     of such  measures, however,  to control the content’ of
\n     expression would be clearly impermissible.”<\/p><\/blockquote>\n
     In Alice  Lee Grosjean,  Supervisor of  Public Accounts
\nfor the\t State of  Louisiana v. American Press Company(l) in
\nwhich  the  appellants\thad  questioned\t the  constitutional
\nvalidity of  an Act of Louisiana which required every person
\nengaged in the business of selling or making any charge for,
\nadvertising or\tfor advertisements,  printed or published in
\nany newspaper,\tperiodical etc. having a circulation of more
\nthan 20,000 copies per week to pay, in addition to all other
\ntaxes, a  license tax  for privilege  of  engaging  in\tsuch
\nbusiness in  the State\tof Louisiana of two per cent (2%) of
\nthe gross  receipts of\tsuch business,\tthe Supreme Court of
\nthe United States observed at pages 668-669:\n<\/p>\n
—————————————-
\n(1) 297 U.S. 233: 80 L. ed. 660.\n<\/p>\n
331<\/span><\/p>\n
\t     “In the light of all that has now been said, it
\n     is evident that the restricted rules of the English law
\n     in respect\t of the A freedom of the press in force when
\n     the Constitution was adopted were never accepted by the
\n     American colonists,  and that by the First Amendment it
\n     was meant\tto preclude  the national government, and by
\n     the Fourteenth  Amendment to  preclude the states, from
\n     adopting any  form of  previous restraint\tupon printed
\n     publications,  or\ttheir  circulation,  including\tthat
\n     which had\ttheretofore been  effected by these two well
\n     known and odious methods
\n\t      It is not intended by anything we have said to
\n     suggest that  the owners  of newspapers are immune from
\n     any of  the ordinary  forms of  taxation for support of
\n     the government.  But this\tis not\tan ordinary  form of
\n     tax, but  one single  in kind,  with a  long history of
\n     hostile misuse against the freedom of the press.
\n\t\t The predominant  purpose of  the  grant  of
\n     immunity here  invoked was\t to preserve an untrammelled
\n     press as  a vital\tsource of  public  information.\t The
\n     newspapers,  magazines   and  other   journals  of\t the
\n     country, it  is safe  to say, have shed and continue to
\n     shed, more light on the public and business. affairs of
\n     the nation than any other instrumentality of publicity;
\n     and since informed public opinion is the most potent of
\n     all restraints  upon misgovernment,  the suppression or
\n     abridgment of  the publicity  afforded by\ta free press
\n     cannot be\tregarded otherwise  than with grave concern.<\/p><\/blockquote>\n
     The tax here involved is bad not because it takes money
\n     from the  pockets of the appellees. If that were all, a
\n     wholly different question would be presented. It is bad
\n     because, in the light of its history and of its present
\n     setting, it  is seen  to be a deliberate and calculated
\n     device in\tthe guise  of a tax to limit the circulation
\n     of information  to which  the  public  is\tentitled  in
\n     virtue of\tthe constitutional  guaranties. A free press
\n     stands as\tone of\tthe great  interpreters between\t the
\n     government and  the people.  To allow it to be fettered
\n     is to fetter ourselves.” (Underlining by us)
\n\t\tThe levy imposed by Louisiana was quashed by
\n     the Supreme
\n332<\/span>
\nCourt of  the United  States of America in the above case on
\nthe ground  that it  violated the  First  Amendment  to\t the
\nConstitution of the United States of America since it was of
\nthe view  that the  tax levied\tin this case was a device to
\nlimit the  circulation of  information. The  Court, however,
\ndid not\t say that no tax could be levied on the press in any
\nevent.\n<\/p>\n
In Robert Murdock, Jr. v. Commonwealth of Pennsylvania (City
\nof Jeannette)(1)  the Supreme  Court of the United States of
\nAmerica declared  as unconstitutional  and violative  of the
\nFirst Amendment\t to the Constitution of the United States of
\nAmerica which  guaranteed freedom  of speech and expression,
\nan  ordinance\twhich  imposed\ta  licence  tax\t on  persons
\ncanvassing for\tand soliciting\twithin the city of Jeannette
\norders for  goods, paintings, pictures, wares or merchandise
\nof any kind or persons delivering such articles under orders
\nso obtained  or solicited. The petitioners in that case were
\n‘Jehovah’s witnesses’  who went\t about from  door to door in
\nthe city of Jeannette distributing literature and soliciting
\npeople to  purchase certain  religious books  and pamphlets.
\nNone of them obtained a licence by paying the prescribed fee
\nand they  were convicted  for violating the Ordinance by the
\nSuperior Court\tof Pennsylvania.  The Supreme  Court of\t the
\nUnited States of America quashed the conviction holding that
\nthe Ordinance  violated the First Amendment. Douglas, J. who
\nwrote the  majority opinion  observed at pages 1299 and 1300
\nthus:\n<\/p>\n
\t\t “In all  of these cases the issuance of the
\n     permit or\tlicense is  dependent on  the payment  of  a
\n     license tax. And the license tax is fixed in amount and
\n     unrelated to the scope of the activities of petitioners
\n     or to  their realized revenues. It is not a nominal fee
\n     imposed as\t a regulatory measure to defray the expenses
\n     of policing the activities in question. It is in no way
\n     apportioned. It  is  a  flat  license  tax\t levied\t and
\n     collected as  a condition\tto the pursuit of activities
\n     whose enjoyment  is guaranteed  by the first Amendment.
\n     Accordingly,   it\t  restrains   in    advance    those
\n     constitutional liberties  of  press  and  religion\t and
\n     inevitably tends  to suppress  their exercise.  That is
\n     almost uniformly  recognised as  the inherent  vice and
\n     evil of this flat license tax………….\n<\/p><\/blockquote>\n
(1) 319 U.S. 105: 87 Law. ed. 1292.\n<\/p>\n
333<\/span><\/p>\n
\t\t\t The  fact  that  the  ordinance  is
\n     ”nondiscriminatory” A  is immaterial.  The protection
\n     afforded by the First Amendment is not so restricted. A
\n     license tax  certainly does  not acquire constitutional
\n     validity because it classifies the privileges protected
\n     by\t the  First  Amendment\talong  with  the  wares\t and
\n     merchandise of  hucksters and  peddlers and treats them
\n     all alike. Such equality in treatment does not save the
\n     ordinance. Freedom of press, freedom of speech, freedom
\n     of religion  are in a preferred position.” (Underlining
\n     by us).\n<\/p>\n
\t     Justice  Reed who\tdissented from\tthe majority
\nobserved at page 1306 thus:\n<\/p>\n
\t\t “It will  be  observed\t that  there  is  no
\n     suggestion of freedom from taxation, and this statement
\n     is equally\t true  of  the\tother  State  constitutional
\n     provisions. It  may be  concluded that  neither in\t the
\n     state or the federal constitutions was general taxation
\n     of church or press interdicted.<\/p><\/blockquote>\n
      Is there anything in the decisions of this Court which
\nindicates that\tchurch or  press is  free from the financial
\nburdens of government ? We find nothing. Religious societies
\ndepend\tfor   their  exemptions\t from  taxation\t upon  state
\nconstitutions or  general statutes,  not  upon\tthe  Federal
\nConstitution. Gibbons  v. District  of Columbia, 116 US 404,
\n29 L  ed 680, 6 S Ct 427. This Court has held that the chief
\npurpose of  the free press guarantee was to prevent previous
\nrestraints upon\t publication. Near  v. Minuesota 283 US 697,
\n713, 75\t L ed  1357, 1366,  51 S  Ct  625.  In\tGrosjean  v.
\nAmerican Press\tCo., 297 US 233, 250, 80 L ed 660, 668, 56 S
\nCt 444,\t it was.,  said that  the predominant purpose was to
\npreserve “an  untrammelled press as a vital source of public
\ninformation.”  In  that\t case,\ta  gross  receipts  tax\t Oil
\nadvertisements in  papers with\ta circulation  of more\tthan
\ntwenty thousand\t copies per  week was held invalid because a
\ndeliberate and\tcalculated device  in the  guise of a tax to
\nlimit the circulation…..”.\n<\/p>\n
\t     There was this further comment:\n<\/p>\n
\t     “It is not intended by anything we have said to
\n     suggest
\n334<\/span>
\nthat the  owners of  newspapers are  immune from  any of the
\nordinary forms\tof taxation  for support  of the government.
\nBut this  is not  an ordinary form of tax, but one single in
\nkind, with  a long  history of\thostile misuse\tagainst\t the
\nfreedom of  the press.” Id. 297 Us 250, 80 L ed 668. 56 S Ct\n<\/p>\n
444.
\n\t It may be said, however, that ours is a too narrow,
\ntechnical and  legalistic approach  to the  problem of state
\ntaxation of  the activities  of church\tand press;  that  we
\nshould look  not to  the expressed  or historical meaning of
\nthe First  Amendment but  to the  broad principles  of\tfree
\nspeech and  free exercise  of  religion\t which\tpervade\t our
\nnational  way  of  life.  It  may  be  that  the  Fourteenth
\nAmendment guarantees  these principles\trather than the more
\ndefinite concept  expressed in\tthe  First  Amendment.\tThis
\nwould mean that as a Court, we should determine what sort of
\nliberty it  is that the due process clause of the Fourteenth
\nAmendment guarantees  against state  restrictions on  speech
\nand church……\n<\/p>\n
      Nor do we understand that the Court now maintains that
\nthe Federal  Constitution frees press or religion of any tax
\nexcept such  occupational taxes as those here levied. Income
\ntaxes,\tad   valorem  taxes,  even  occupational  taxes\t are
\npresumably valid,  save only  a\t license  tax  on  sales  of
\nreligious books.  Can it  be that the Constitution permits a
\ntax on\tthe printing  presses and  the\tgross  income  of  a
\nmetropolitan newspaper\tbut  denies  the  right\t to  lay  an
\noccupational tax  on the  distributors of  the same papers ?
\nDoes the  exemption apply to book sellers or distributors of
\nmagazines or  only to  religious publications  ? And, if the
\nlatter, to what distributors ? Or to what books ? Or is this
\nCourt saying  that a religious practice of book distribution
\nis free\t from taxation\tbecause a  state cannot prohibit the
\n“free exercise\tthereof” and  a newspaper  is subject to the
\nsame tax  even though the same Constitutional Amendment says
\nthe state  cannot abridge  the freedom of the press ? It has
\nnever been  thought before  that freedom from taxation was a
\nperquisite  attaching\tto  the\t  privileges  of  the  First
\nAmendment.”\n<\/p>\n
     Justice Reed added at pages 1307 and 1308 thus:
\n335<\/span><\/p>\n
\t\t “It is urged that such a tax as this may be
\n     used   readily to\trestrict the dissemination of ideas,
\n     This must\tbe conceded  but the  possibility of  misuse
\n     does not  make a  tax  unconstitutional.  No  abuse  is
\n     claimed here. The ordinances in some of these cases are
\n     the  general  occupation  license\ttype  covering\tmany
\n     businesses.  In   the   Jeannette\t prosecutions,\t the
\n     ordinance involved\t lays the usual tax on canvassing or
\n     soliciting sales  of goods,  wares and  merchandise. It
\n     was  passed   in  1898.  Every  power  of\ttaxation  or
\n     regulation is  capable of\tabuse.\tEach  one,  to\tsome
\n     extent, prohibits\tthe free  exercise of  religion\t and
\n     abridges the freedom of the press, but that is hardly a
\n     reason for\t denying the  power.  If  the  tax  is\tused
\n     oppressively the  law will protect the victims of` such
\n     action.” (Underlining by us.)
\n       Justice\tFrankfurter  who  also\tdissented  from\t the
\nmajority observed at pages 1310 and 1311 thus:\n<\/p>\n
\t\t “It cannot be said that the petitioners are
\n     constitutionally exempt  from taxation  merely  because
\n     they may  be engaged in religious activities or because
\n     such  activities\tmay  constitute\t an  exercise  of  a
\n     constitutional right…..<\/p><\/blockquote>\n
      Nor  can a  tax be-invalidated merely because it falls
\nupon  activities   which  constitute   an  exercise   of   a
\nconstitutional right. The First Amendment of course protects
\nthe right  to publish  a newspaper  or a magazine or a book.
\nBut the\t crucial question  is-how much\tprotection does\t the
\nAmendment give, and against what is the right protected ? It
\nis certainly  true that\t the protection afforded the freedom
\nof the\tpress  by  the\tFirst  Amendment  does\tnot  include
\nexemption from all taxation. A tax upon newspaper publishing
\nis not\tinvalid simply because it falls upon the exeacise of
\na constitutional  right. Such  a tax  might be invalid if it
\ninvidiously singled  out newspapers  publishing, for bearing
\nthe burdens of taxation or imposed upon them in such ways as
\nto encroach  on the  essential scope of a free press. If the
\nCourt could  justifiably hold that the tax measures in these
\ncases were  Vulnerable on  that ground, I would unreservedly
\nagree. But the
\n336<\/span>
\n\t       Court has not done so, and indeed could not.”
\n     (Under lining by us)
\n      In  the above  case it may be noticed that Douglas, J.
\nwho gave  the majority opinion did not say that no tax could
\nbe levied  at all  on a\t press, but  he did not approve of a
\nuniform license tax unrelated to the scope of the activities
\nof the\tpersons who  had to beat it. The dissenting opinions
\nhave clearly  stated that  the\tpress  does  not  enjoy\t any
\nimmunity from taxation. They, however, say that the taxation
\nshould not  encroach upon  the essential  scope\t of  a\tfree
\npress.\n<\/p>\n
     We may  usefully refer  here to  a passage\t in the foot
\nnote given  below the  Essay No\t 84 by Alexander Hemilton in
\n‘The Federalist’. it reads:\n<\/p>\n
\t\t “It cannot  certainly be pretended that any
\n     degree of\tduties, however\t low, would be an abridgment
\n     of the  liberty of\t the press.  We know that newspapers
\n     are taxed\tin Great  Britain, and\tyet it\tis notorious
\n     that the  press nowhere  enjoys greater liberty than in
\n     that country.  And if  duties of  any kind\t may be laid
\n     without a\tviolation of   that  liberty, it  is evident
\n     that the  extent must depend on legislative discretion,
\n     regulated by public opinion ;”<\/p><\/blockquote>\n
      At this stage we find it useful to refer to a decision
\nof the\tPrivy Council  in Attorney General & Anr. v. Antigua
\nTimes Ltd.(  Where  the\t Judicial  Committee  of  the  Privy
\nCouncil was  called upon to decide about the validity of the
\nimposition of  a licence  fee of  p S  600 annually  on\t the
\npublisher of  a newspaper under the News papers Registration
\n(Amendment) Act,  1971. Section\t 10 of\tthe Constitution  of
\nAntigua read as follows:\n<\/p>\n
\t     “10. (1) Except with his own consent, no person
\n     shall be  hindered in  the enjoyment  of his freedom of
\n     expression, and  for the  purposes of  this section the
\n     said freedom  includes the freedom to hold opinions and
\n     to receive\t and impart  ideas and\tinformation  without
\n     interference, and\tfreedom from  interference with\t his
\n     correspondence and other means of communication
\n(1). [1975] 3 All E.R. 81
\n337<\/span>
\n\t\t (2) Nothing  contained in or done under the
\n     authority of  any law  shall be held to be inconsistent
\n     with or  in contravention of this section to the extent
\n     that the  law in  question makes  provision-(a) that is
\n     reasonably required-(i)  in the  interests of  defence,
\n     public safety,  public order, public morality or public
\n     health; or\t (ii) for  the\tpurpose\t of  protecting\t the
\n     reputations, rights  and freedoms\tof other persons, or
\n     the  private   lives  of  persons\tconcerned  in  legal
\n     proceedings, preventing  the disclosure  of information
\n     received in  confidence, maintaining  the authority and
\n     independence of  the courts,  or regulating  telephony,
\n     telegraphy, posts,\t wireless, broadcasting,  television
\n     or other  means of communication, public exhibitions or
\n     public entertainments; or (b) that imposes restrictions
\n     upon public officers.”<\/p><\/blockquote>\n
      Lord  Fraser who\tdelivered the  judgment of the Privy
\nCouncil\t upheld\t the  levy  of\tthe  licence  fee  as  being
\nreasonably required  in the  interests of  defence  and\t for
\nsecuring public\t safety etc.  referred to  in section 10 (2)\n<\/p>\n
(a) (i)\t of the\t Constitution of  Antigua, The\tlearned Lord
\nobserved in that connection thus:\n<\/p>\n
\t      Revenue requires to be raised in the interests
\n     of defence\t and  for  securing  public  safety,  public
\n     order, public  morality and  public health\t and if this
\n     tax was  reasonably required to raise revenue for these
\n     purposes or  for any  of them,  then S. IB is not to be
\n     treated as contravening the Constitution.
\n\t     In some cases it may be possible for a court to
\n     decide from  a mere perusal of an Act whether it was or
\n     was not  reasonably required.  In other  cases the\t Act
\n     will not  provide the  answer to that question. In such
\n     cases has\tevidence to  be brought\t before the court of
\n     the reasons  for the  Act\tand  to\t show  that  it\t was
\n     reasonably required  ? Their  Lordships think  that the
\n     proper approach  to the  question is  to presume, until
\n     the contrary  appears or is shown, that all Acts passed
\n     by the  Parliament of Antigua were reasonably required.
\n     This presumption  will be\trebutted  if  the  statutory
\n     provisions in  question are, to use the words of Louisy
\n     J, ‘so  arbitrary as  to compel  the conclusion that it
\n     does not involve an exertion of the
\n338<\/span>
\n\t       taxing power but constitutes in substance and
\n     effect  the   direct  execution   of  a  different\t and
\n     forbidden power.’\ty the  amount of the licence fee was
\n     so manifestly  excessive its  to lead to the conclusion
\n     that the  real reason  for its  imposition was  not the
\n     raising  of   revenue  but\t  the  preventing   of\t the
\n     publication of  newspapers, then that would justify the
\n     conclusion that the law was not reasonably required the
\n     raising of revenue.<\/p><\/blockquote>\n
\t\t In there Lordships’ opinion the presumption
\n     that the  newspapers Registration (Amendment) Act, 1971
\n     was reasonably  required has  not been reputed and they
\n     do\t not  regard  the  amount  of  the  licence  fee  as
\n     manifestly excessive and of such a character as to lead
\n     to the  conclusion that  S. IB was not enacted to raise
\n     revenue but  for some  other Purpose.”  (Underlining by
\n     us)
\n      Here  again it  is seen  that the Privy council was of
\nthe view  that the law did not forbid the levy of fee on the
\npublisher of  a newspaper  but it would be open to challenge
\nif the real reason for its imposition was not the raising of
\nrevenue but the preventing of the publication of newspaper.\n<\/p>\n
     At this  stage it\tis necessary  to refer to a forceful
\nargument addressed  before us. It was urged on behalf of the
\npetitioners  that  the\trecognition  of\t the  power  of\t the
\nGovernment to  levy taxes  of  any  kind  on  the  newspaper
\nestablishments would  ring in the death-knell of the freedom
\nof press and would be totally against
\n the  spirit of\t the Constitution.  It is contended that the
\nGovernment is likely to use it to make the press subservient
\nto the Government. It is argued that when once this power is
\nconceded, newspapermen will have to run after the Government
\nand  hence   it\t ought\t not  to  be  done.  This  raises  a
\nphilosophical question\tPressversus Government-\t We  do\t not
\nthink it is necessary for the press to be subservient to the
\nGovernment. As\tlong as\t ‘this Court sits’ newspapermen need
\nnot have  the fear  of\ttheir  freedom\tbeing  curtailed  by
\nunconstitutional means.\t It is,\t however, good\tto  remember
\nsome statements\t made in the past by some wise men connected
\nwith newspapers\t in order  to  develop\tthe  culture  of  an
\nindependent press.  Hazlitt advised editors to stay in their
\ngarrets and  avoid exposing  themselves to the sub-leties of
\npower. Walter  Lippman in  his address\tto the International
\nPress Institute some
\n339<\/span>
\nyears ago  said that  the danger  to  the  independence\t and
\nintegrity of  journalists did  not come\t from the  pressures
\nthat might  A be  put on  them; it  was that  they might  be
\ncaptured and  capitivated by  the company  they keep. Arthur
\nKrock after  60 years  of experience  said that\t it ‘is true
\nthat  in   most\t cases,\t the  price  of\t friendship  with  a
\npolitician is  so great\t for any newspaperman to pay’. A. P.
\nWadsworth of  the Manchester  Guardian said  “that no editor
\nshould ever  be on  personal terms with our leaders for fear
\nof creating  a false sense of relation of confidence.” James
\nMargach says  that ‘when  leading media figures see too much
\nrather than too little of Prime Minister that the freedom of
\npress is  endangered.’ Lord  Salisbury told  Buckle a famous
\neditor in England “you are the first person who has not come
\nto see\tme in the last few days who is not wanting something
\nat my  handsplace or  decoration or  peerage. You  only want
\ninformation.”\tCharles\t  Mitchell   wrote   in\t  ‘Newspaper
\nDirectory’. The\t Press has  row so great and so extensive an
\ninfluence on public opinion…that…. its conductors should
\nbe GENTLEMAN  in the  true sense of the word. They should be
\nequally above  corruption and\t intimidation  incapable  of
\nbeing warped  by personal considerations from the broad path
\nof  truth   and\t honour,   superior  to\t  all  attempts\t  at
\nmisrepresenting or  mystifying public  events’. If the press
\nceases to  be independent the healthy influence of the press
\nand  public   opinion  will   soon  be\tsubstituted  by\t the
\ntraditional influences\tof landlordism\tand  feudalism.\t The
\npress lords  should endeavour  to see that their interest do
\nnot come  into conflict\t with their duties. All this is said
\nonly to\t show that  Government alone  may not  always be the
\nculprit in destroying the independence of the press. Be that
\nas it  may, it is difficult to grant that merely because the
\nGovernment has\tthe power to levy taxes the freedom of press
\nwould be  totally lost.\t As stated  earlier,  the  court  is
\nalways there to hold the balance even and to strike down any
\nunconstitutional invasion of that freedom.\n<\/p>\n
      Newspaper\t industry  enjoys  two\tof  the\t fundamental
\nrights,\t namely\t  the  freedom\t of  speech  and  expression
\nguaranteed under  Article 19  (l) (a)  and  the\t freedom  to
\nengage in  any profession,  occupation, trade,\tindustry  or
\nbusiness  guaranteed   under  Article  19  (1)\t(g)  of\t the
\nConstitution, the  first because  it is\t concerned with\t the
\nfield of expression and communication and the second because
\ncommunication has  become an  occupation or  profession\t and
\nbecause there is on invasion of trade, business and industry
\n340<\/span>
\ninto  that  field  where  freedom  of  expression  is  being
\nexercised. While  there can  be\t no  tax  on  the  right  to
\nexercise  freedom   of\texpression,   tax  is\tleviable  on
\nprofession, occupations trade,
\nbusiness and  industry. Hence  tax is  leviable on newspaper
\nindustry. But  when such  tax transgresses into the field of
\nfreedom of  expression and  stifles that freedom, it becomes
\nunconstitutional. As  long as it is within reasonable limits
\nand does not impede
\n freedom  of expression\t it will  not  be  contravening\t the
\nlimitations  of\t  Article  19  (2).  The  delicate  task  of
\ndetermining when  it crosses  from the\tarea of\t profession,
\noccupation, trade,  business or\t industry into\tthe area  of
\nfreedom of  expression and  interferes with  that freedom is
\nentrusted to the courts.\n<\/p>\n
     The petitioners,  however, have  placed strong reliance
\non the\tSakal’s case  (supra) and the Bennett Coleman’s case
\n(supra) in  support of\ttheir case that any tax on newsprint
\nwhich is  the most  important component\t of a  newspaper  is
\nunconstitutional. They\thave  drawn  our  attention  to\t the
\nfollowing passage  in the  decision in\tSakal’s case (supra)
\nwhich is at page 863:\n<\/p>\n
\t      ” It may well be within the power of the state
\n     to place,\tin  the\t interest  of  the  general  public,
\n     restrictions upon\tthe right  of a\t citizen to carry on
\n     business but  it is  not open  to the  State to achieve
\n     this object  by directly and immediately curtailing any
\n     other  freedom   of  that\tcitizen\t guaranteed  by\t the
\n     Constitution  and\t which\t is   not   susceptible\t  of
\n     abridgement on  the same  grounds as are set out in cl.
\n     (6) of  Art. 19.  Therefore, the  right of\t freedom  of
\n     speech cannot  be taken away with the object of placing
\n     restrictions on  the business  activities of a citizen.
\n     Freedom  of  speech  can  be  restricted  only  in\t the
\n     interests\tof  the\t security  of  the  State,  friendly
\n     relations with  foreign State, public order, decency or
\n     morality  or   in\trelation   to  contempt\t  of  court,
\n     defamation or incitement to an offence. It cannot, like
\n     the freedom  to carry  on business, be curtailed in the
\n     interest of  the general  public.\tIf  a  law  directly
\n     affecting it  is challenged  it is\t no answer  that the
\n     restrictions enacted  by it  are justifiable under cls.
\n     (3) to  (6). For, the scheme of Art. 19 is to enumerate
\n     different freedoms\t separately and\t then to specify the
\n     extent of\trestrictions to\t which they  may be subjects
\n     and   the object for securing which this could be done.
\n     A citizen
\n341<\/span>
\n\t      is entitled to enjoy each and every one of the
\n     freedoms together\tand cl.\t (1)  does  not\t prefer\t one
\n     freedom to A another. That is the plain meaning of this
\n     clause. It follows from this that the State cannot make
\n     a law  which directly  restricts one  freedom even\t for
\n     securing the  better enjoyment  of another freedom. All
\n     the greater  reason, therefore,  for holding  that\t the
\n     State cannot  directly restrict  one freedom by placing
\n     an otherwise permissible restriction another freedom. “<\/p><\/blockquote>\n
      In  Bennett Coleman’s  case (supra) the question which
\narose  for  consideration  related  to\tthe  validity  of  a
\nrestriction imposed  under the\tnewsprint policy  which\t had
\ncertain objectionable features such as (i) that no newspaper
\nor new\tedition could be started by a common owner-ship unit
\neven within  the authorised  quota of  newsprint  (ii)\tthat
\nthere was  a limitation\t on the\t maximum number of pages, no
\nadjustment being  permitted between circulation and pages so
\nas to  increase\t pages,\t (iii)\tthat  a\t big  newspaper\t was
\nprohibited and\tprevented  from\t increasing  the  number  of
\npages, page area, and periodicity by reducing circulation to
\nmeet the  requirement even within its admissible quota etc..
\nThe majority  held that\t the fixation  of page limit had not
\nonly deprived the petitioners of their economic vitality but
\nalso restricted\t their freedom\tof expression.\tIt also held
\nthat such  restriction of  pages resulted  in  reduction  of
\nadvertisement,\trevenue\t and  thus  adversely  affected\t the
\ncapacity of  a newspaper  to carry  on its activity which is
\nprotected by Article 19(1)(a) of the Constitution.\n<\/p>\n
      We  have carefully considered the above two decisions.
\nIn the first case the Court was concerned with the newspaper
\nprice-page policy  and in  the second  the newsprint  policy
\nimposed by  the Government  had been  challenged. Neither of
\nthem was  concerned with the power of Parliament to levy tax
\non any\tgoods used  by the  newspaper industry\tAs  we\thave
\nobserved earlier  taxes have to be levied for the support of
\nthe Government\tand newspapers which derive benefit from the
\npublic\texpenditure   cannot  disclaim\ttheir  liability  to
\ncontribute a  fair  and\t reasonable  amount  to\t the  public
\nexchequer. What may, however, have to be observed in levying
\na tax on newspaper industry is that it should not be a over-
\nburden on  newspapers which  constitute the Fourth Estate of
\nthe country. Nor should it single out newspaper industry for
\nharsh treatment.  A wise  administrator should\trealise that
\nthe imposition of a tax like the customs duty on
\n342<\/span>
\nnew newsprint  is  an  imposition  on  knowledge  and  would
\nvirtually amount  to a\tburden imposed\ton a  man for  being
\nliterate and for being conscious of his duty as a citizen to
\ninform himself\tabout the  world  around  him.\t‘The  public
\ninterest in  freedom of\t discussion (of which the freedom of
\nthe press  is one  aspect) stems from the requirement t that
\nmembers of  a  democratic  society  should  be\tsufficiently
\ninformed that they may influence intelligently the decisions
\nwhich may  affect themselves’.\t(Per Lord Simon of Glaisdale
\nin Attorney  General  v.  Times\t Newspapers(l).\t Freedom  of
\nexpression, as learned writers have observed, has four broad
\nsocial purposes\t to serve:  (i) it  helps an  individual  to
\nattain self  fulfilment, (ii) it assists in the discovery of
\ntruth, (iii) it strengthens the capacity of an individual in
\nparticipating in  decision-making and  (iv)  it\t provides  a
\nmechanism by  which it\twould be  possible  to\testablish  a
\nreasonable balance  between stability and social change. All
\nmembers of  society should be able to form their own beliefs
\nand  communicate   them\t freely\t  to  others.  In  sum,\t the
\nfundamental principle\tinvolved  here is the people’s right
\nto know. Freedom of speech and expression should, therefore,
\nreceive a generous support from all those who believe in the
\nparticipation of  people in  the administration.  It  is  on
\naccount of  this special  interest which  society has in the
\nfreedom of  speech and\texpression that\t the approach of the
\nGovernment should  be more  cautious while  levying taxes on
\nother matters  concerning  newspapers  industry\t than  while
\nlevying taxes
\n on  matters. It  is true  that this  Court  has  adopted  a
\nliberal approach  while dealing with fiscal measures and has
\nupheld\tdifferent   kinds  of\ttaxes  levied  on  property,
\nbusiness, trade and industry as they were found to be in the
\npublic interest.  But in  the cases  before us\tthe Court is
\ncalled upon to reconcile the social interest involved in the
\nfreedom of  speech and\texpression with\t the public interest
\ninvolved in  the fiscal\t levies imposed\t by  the  Government
\nspecially  because   newsprint\tconstitutes   the  body,  if
\nexpression happens to be the soul.\n<\/p>\n
      In  view of  the intimate connection of newsprint with
\nthe freedom  of the  press, the\t tests for  determining\t the
\nvires of  a statute  taxing newsprint have, therefore, to be
\ndifferent from\tthe tests  usually adopted  for testing\t the
\nvires of  other taxing\tstatutes. In  the case\tof  ordinary
\ntaxing statutes, the laws may be questioned only if they are
\neither\topenly\t confiscatory  or  a  colourable  device  to
\nconfiscate. On\tthe other  hand, in  the case  of a  tax  on
\nnewsprint,
\n(1) [1973] 3 All. E.R. 54
\n343<\/span>
\nit may\tbe sufficient  to show\ta  distinct  and  noticeable
\nburdensomeness, clearly\t and directly  attributable  to\t the
\ntax. A
\n      While  we, therefore, cannot agree with the contention
\nthat no\t tax can  be levied  on newspaper  industry, we hold
\nthat any  such levy  is subject\t to review  by courts in the
\nlight of the provisions of the
\n\t\t\t     V
\n\t\t Are the impugned notifications issued under
\n     section 25 of the Customs Act. 1962 beyond the reach of
\n     the Administrative Law.\n<\/p>\n
\t     It is argued on behalf of the Government that a
\nnotification issued  under section  25(1) of the Customs Act
\ngranting, modifying  or withdrawing  an exemption  from duty
\nbeing in  the nature  of a piece of subordinate legislation,
\nits validity  cannot be\t tested by the Court by applying the
\nstandards applicable  to an  administrative action. Reliance
\nis placed  on the  decision of\tthis Court in Narinder Chand
\nHem Raj\t &  Ors.  v.  Lt..  Governor,  Administrator.  Union
\nTerritory, Himachal  Pradesh &\tOrs.<\/a> (1)  in support  of the
\nabove contention.  In that  case the  appellants  were\twine
\nmerchants carrying on business in Simla. At the auction held
\nfor the\t purpose of  granting the  privileges  to  sell\t the
\nIndian made  foreign liquor  the appellants were the highest
\nbidders. It  appears that  before the  auction was  held the
\nCollector of Excise and Taxation had announced that no sales
\ntax would  be liable  to be  paid on  the sale of liquor and
\ndespite\t this\tassurance  the\tGovernment  had\t levied\t and
\ncollected from\tthe appellants\ta certain  amount by  way of
\nsales tax.  The appellants prayed for the issue of a writ to
\nthe Governments\t restraining them from levying any sales tax
\nand to\trefund what  had been  recovered from them by way of
\nsales tax  already.  It\t was  contended\t on  behalf  of\t the
\nGovernment of  Himachal Pradesh that non-collection of sales
\nTax possible  only on  the issue  of a\tnotification by\t the
\nGovernment pursuant  to its statutory power under the Punjab
\nGeneral Sales  Tax Act,\t which was  in force  in the area in
\nquestion shifting  ‘liquor’ which  was in  Schedule  ‘A’  to
\nSchedule ‘B’  to the  Punjab General Sales Tax Act, and that
\nsuch a\tnotification could not be issued because the Central
\nGovernment had\tnot given  its requisite  approval. Hence it
\nwas urged  by the  Government that  since sales tax had been
\nimposed by  law on  all items  in Schedule  ‘A’ it could not
\ndisobey the  mandate of\t law. It  further contended that the
\nCourt could  not issue a mandamus to the Government to issue
\na notification\tto amend the Schedules to the statute as the
\nact of issuing such a notification was a legislative act and
\nno writ could be issued to a
\n344<\/span>
\nlegislative body or a subordinate Legislative body to a make
\na law  or to issue a notification, as the case may be, which
\nwould have the effect of amending a law in force. This Court
\nupheld the contention of the Government. The Court said:\n<\/p>\n
\t\t “Our attention\t has not  been drawn  to any
\n     provision in  that, Act  empowering the  Government  to
\n     exempt any\t assessee from\tpayment of tax. Therefore it
\n     is clear  that appellant  was liable  to  pay  the\t tax
\n     imposed under  the law. What the appellant really wants
\n     is a  mandate from the court to the competent authority
\n     to delete\tthe concerned  entry  from  Schedule  A\t and
\n     include the  same in  Schedule B.\tWe shall not go into
\n     the question whether the Government of Himachal Pradesh
\n     on\t its   own  authority  was  competent  to  make\t the
\n     alteration in  question or not. We shall assume for our
\n     present purpose  that it had such a power. The power to
\n     impose a  tax is  undoubtedly a legislative power. That
\n     power can\tbe exercised  by the legislature directly or
\n     subject to\t certain  conditions,  the  legislature\t may
\n     delegate the  power to  some other\t authority. But\t the
\n     exercise of that power whether by the legislature or by
\n     its delegate is an exercise of a legislative power. The
\n     fact that the power was delegated to the executive does
\n     not  convert   that  power\t  into\t an   executive\t  or
\n     administrative power. No Court can issue a mandate to a
\n     legislature to  enact a  particular law.  Similarly  no
\n     court can\tdirect a  subordinate  legislative  body  to
\n     enact or  not to  enact a law which it may be competent
\n     to enact.\tThe relief as framed by the appellant in his
\n     writ petition does not bring out the real issue calling
\n     for determination.\t In reality  he wants  this Court to
\n     direct the\t Government to\tdelete the entry in question
\n     from Schedule  A and  include the\tsame in\t Schedule B.
\n     Art. 265  of the Constitution lays down that no tax can
\n     be levied\tand collected  except by  authority of\tlaw.<\/p><\/blockquote>\n
     Hence the\tlevy of\t a tax\tcan  only  be  done  by\t the
\n     authority of law and not by any executive order. Unless
\n     the executive is specially empowered by law to give any
\n     exemption it  cannot say  that it\twill not enforce the
\n     law as  against a particular person . No court can give
\n     a direction to a Government to refrain from enforcing a
\n     provision of  law. Under  these circumstances,  we must
\n     held that\tthe relief asked for by the appellant cannot
\n     be granted.” (Underlining by us)
\n345<\/span>
\n      The  above decision  does\t not  in  fact\tsupport\t the
\ncontention of  the Government  in the cases before us. It is
\nnoteworthy that the Court in the passage extracted above has
\nmade a\tdistinction between the amendment of the Schedule to
\nthe  Punjab  General  Sales  Tax  Act  by  the\tissue  of  a
\nnotification  by  the  Government  of  Himachal\t Pradesh  in
\nexercise of  its power delegation by the legislature and the
\npower of that Government to grant exemption under a power to
\ngrant K\t exemption. In\tthe present  cases we  are concerned
\nwith a\tpower to  grant exemption conferred on Government by
\nsection 25  of the Customs Act, 1962 and not with a power to
\namend the  Act by means of a notification. Moreover this was
\njust a case relating to business in liquor.\n<\/p>\n
      We  shall assume\tfor purposes of these cases that the
\npower to  grant exemption  under section  25 of\t the Customs
\nAct, 1962  is a\t legislative power and a notification issued
\nby  the\t  Government  thereunder   amounts  to\ta  piece  of
\nsubordinate  legislation.  Even\t then  the  notification  is
\nliable to  be  questioned  On  the  ground  that  it  is  an
\nunreasonable one.  The decision\t of this  Court in Municipal
\nCorporation of\tDelhi v.  Birla Cotton, Spinning and Weaving
\nMills, Delhi & Anr.<\/a>(l) has laid down the above principle. In
\nthat case Wanchoo, C.J. while upholding certain taxes levied
\nby the\tCorporation of\tDelhi under section 150 of the Delhi
\nMunicipal Corporation Act, 1957 observed thus:\n<\/p>\n
\t      “Finally there is – another check on the power
\n     of the  Corporation which\tis inherent in the matter of
\n     exercise of  power by subordinate public representative
\n     bodies such  as municipal\tboards. In such cases if the
\n     act of  such a  body  in  the  exercise  of  the  power
\n     conferred on  it by the law is unreasonable, the courts
\n     can  hold\t that  such   exercise\tis   void  for\t the
\n     unreasonableness. This  principle was  laid down as far
\n     back as 1898 in Kruse v. Johnson [1898] 2 Q.B.D. 91”<\/p><\/blockquote>\n
      But  it appears that the principle enunciated in Kruse
\nv. Johnson  (2) is  not\t being\tapplied\t so  stringently  in
\nEngland now.\n<\/p>\n
      A\t piece of subordinate legislation does not carry the
\nsame degree of immunity which is enjoyed by a statute passed
\nby a com-\n<\/p>\n
(1) [1968] 3 S.C.R. 251.\n<\/p>\n
(2) [1898] 2 Q.B.D. 91.\n<\/p>\n
346<\/span><\/p>\n
petent\t legislature.\tSubordinate   legislation   may\t  be
\nquestioned  on\t any  of   the\tgrounds\t  on  which  plenary
\nlegislation is\tquestioned.  In\t addition  it  may  also  be
\nquestioned on  the ground  that it  does not  conform to the
\nstatute under which it is made. It may further be questioned
\non the\tground that  it is  contrary to\t some other statute.
\nThat  is  because  subordinate\tlegislation  must  yield  to
\nplenary legislation. It may also be questioned on the ground
\nthat it\t is unreasonable,  unreasonable not  in the sense of
\nnot being reasonable, but in the sense that it is manifestly
\narbitrary. In  England, the  judges  would  say\t “Parliament
\nnever intended\tauthority  to  make  such  rules.  They\t are
\nunreasonable and  ultra vires”.\t The present position of law
\nbearing on  the above  point is\t stated by  Diplock, L.J. in
\nMixnam\tProperties Ltd. v. Chertsey U.D.C.(1) thus:\n<\/p>\n
\t\t ‘The various grounds upon which subordinate
\n     legislation has  sometimes been said to be void -…- –
\n     can, I  think, today  be  properly\t regarded  as  being
\n     particular\t applications\tof  the\t general  rule\tthat
\n     subordinate legislation,  to be  valid must be shown to
\n     be within the powers conferred by the statute. Thus the
\n     kind of  unreasonableness which  invalid dates a by-law
\n     is not  the antonym of ‘reasonableness’ in the sense of
\n     which that\t expression is\tused in\t the common law, but
\n     such mainfest  arbitrariness, injustice  or  partiality
\n     that a  court would  say: ‘Parliament never intended to
\n     give  authority   to  make\t  such\t rules:\t  they\t are
\n     unreasonable and  ultra vires..  -‘ If  the courts\t can
\n     declare  subordinate  legislation\tto  be\tinvalid\t for
\n     ‘uncertainty,’ as distinct from unenforceable-this must
\n     be because\t Parliament is\tto be  presumed not  to have
\n     intended  to   authorise  the  subordinate\t legislative
\n     authority to make changes in the existing law which are
\n     uncertain. ”\n<\/p><\/blockquote>\n
\t\t Prof. Alan  Wharam in\this Article entitled
\n     ‘Judicial Control of Delegated Legislation: The Test of
\n     Resonableness’ in\t36 modern  Law Review  611 at  pages
\n     622-23 has\t summarised the\t present position in England
\n     as follows:<\/p><\/blockquote>\n
\t\t “(i) It  is possible  that the courts might
\n     invalidate\t statutory  instrument\ton  the\t grounds  of
\n     unreasonableness\tor    uncertainty,   vagueness\t  or
\n     aribitrariness; but the writer’s
\n(1) [1964] 1 Q.B.. 214.\n<\/p>\n
347<\/span><\/p>\n
       view   is  that\t for  all  practical  purposes\tsuch
\ninstruments must  be read  as forming  part  of\t the  parent
\nstatute, subject only to the ultra vires test.\n<\/p>\n
\t      (ii) The courts are prepared to invalidate by-
\n     laws, or  any other form of legislation, emanating from
\n     an elected, representative authority, on the grounds of
\n     unreasonableness  uncertainty   or\t repugnance  to\t the
\n     ordinary law;  but they are reluctant to do so and will
\n     exercise their power only in clear cases.\n<\/p>\n
\t       (iii) The courts may be readier to invalidate
\n     by-laws  passed   by  commercial\tundertakings   under
\n     statutory power,  although cases  reported\t during\t the
\n     present century  suggest that  the distinction  between
\n     elected authorities  and  commercial  undertakings,  as
\n     explained in Kruse v. Johnson, might not now be applied
\n     so stringently.\n<\/p>\n
\t      (iv) As far as subordinate legislation of non-
\n     statutory\torigin\t is  concerned,\t this  is  virtually
\n     obsolete, but  it is clear from In re French Protestant
\n     Hospital [1951]  ch. 567  that it\twould be  subject to
\n     strict control.”\n<\/p>\n
\t      (See also H.W.R. Wade: Administrative Law (5th
\n     Edn.) pp. 747-748).\n<\/p>\n
      In  India arbitrariness is not a separate ground since
\nit will\t come within  the  embargo  of\tArticle\t 14  of\t the
\nConstitution.  In  India  any  enquiry\tinto  the  vires  of
\ndelegated legislation  must be\tconfined to  the grounds  on
\nwhich plenary  legislation may\tbe questioned, to the ground
\nthat it\t is contrary  to the statute under which it is made,
\nto the\tground\tthat  it  is  contrary\tto  other  statutory
\nprovisions or  that it\tis so arbitrary that it could not be
\nsaid to be in conformity with the statute or that it offends
\nArticle 14 of the Constitution.\n<\/p>\n
      That  subordinate legislation  cannot be questioned on
\nthe ground  of violation of principles of natural justice on
\nwhich administrative  action may be questioned has been held
\nby this Court in The Tulsipur Sugar Co. Ltd. v. The Notified
\nArea Committee,\t Tulsipur<\/a>(l), Rameshchandra Kachardas Porwal
\n& Ors. v. State of
\n(1) [1980] 2 S.C.R- 1111.\n<\/p>\n
348<\/span><\/p>\n
Maharashtra &  Ors. etc(1). and in Bates v. Lord Hailsham of
\nSt Marylebone  & Ors(2).  A distinction must be made between
\ndelegation of  a legislative  function in  the case of which
\nthe question  of reasonableness\t cannot be enquired into and
\nthe   investment   by\tstatute\t  to   exercise\t  particular
\ndiscretionary powers. In the latter case the question may be
\nconsidered on all grounds on
\n which\tadministrative action  may be  questioned, such\t as,
\nnonapplication\tof  mind,  taking  irrelevant  matters\tinto
\nconsideration,\tfailure\t  to  take   relevant  matters\tinto
\nconsideration, etc. etc. On the facts and circumstances of a
\ncase, a\t subordinate  legislation  be  may  struck  down  as
\narbitrary or  contrary to  statute if  it fails to take into
\naccount very  vital  facts  which  either  expressly  or  by
\nnecessary  implication\t are  required\t to  be\t taken\tinto
\nconsideration by the statute or, say, the Constitution. This
\ncan only  be done  on the ground that it doe- not conform to
\nthe statutory  or constitutional  requirements\tor  that  it
\noffends\t Article   14  or   Article  19\t  (1)  (a)   of\t the
\nConstitution. It  cannot, no  doubt, be\t done merely  on the
\nground that  it is not reasonable or that it has not taken n
\ninto  account\trelevant  circumstances\t  which\t the   Court
\nconsiders relevant.\n<\/p>\n
\t    We do not, therefore, find much substance in the
\ncontention that\t the courts  cannot at all exercise judicial
\ncontrol over  the impugned notifications. In cases where the
\npower vested  in the  Government is a power which has got to
\nbe exercised  in the  public interest,\tas it  happens to be
\nhere, the  Court may require the Government to exercise that
\npower in  a reasonable\tway in accordance with the spirit of
\nthe Constitution.  The fact that a notification issued under
\nsection 25 (1) of the Customs Act, 1962
\n is  required to be laid before Parliament under section 159
\nthereof does  not make any substantial difference as regards
\nthe jurisdiction of the court to pronounce on its validity.\n<\/p>\n
      The  power to  grant  exemption  should,\thowever,  be
\nexercised  in\ta  reasonable  way.  Lord  Greene  M.R.\t has
\nexplained in
\n Associated  Provincial Picture\t Houses Ltd.  v.  Wednesbury
\nCorporation(U) what a ‘reasonable way’ means as follows:\n<\/p>\n
\t       “It is true that discretion must be exercised
\n     reason ably. Now what does that mean ? Lawyers familiar
\n     with
\n(1) [1981] 2 S.C.R. 866.\n<\/p><\/blockquote>\n
(2) [1972] 1 WLR 1373.\n<\/p>\n
(3) [1948] 1 K.B. 223.\n<\/p>\n
349<\/span><\/p>\n
     the  phraseology\tused  in  relation  to\texercise  of
\n     statutory\t A    discretions   often   use\t  the\tword
\n     ‘unreasonable’ in\ta rather comprehensive sense. It has
\n     frequently been  used  and\t is  frequently\t used  as  a
\n     general description  of the  things that  must  not  be
\n     done.  For\t  instance,  a\t person\t entrusted   with  a
\n     discretion must,  so to  speak, direct himself properly
\n     in law.  He must  call his own attention to the matters
\n     which he is bound to consider. He must exclude from his
\n     consideration matters  which are  irrelevant to what he
\n     has to  consider. If  he does  not obey those rules, he
\n     may truly\tbe said,  and often  is said  to  be  acting
\n     ‘unreasonably’. Similarly,\t there may be some- thing so
\n     absurd that no sensible person could ever dream that it
\n     lay within the powers of the authority. Warrlngton L.J.
\n     in short  Y, Poole\t Corporation [1926]  Ch. 66 gave the
\n     example of\t the red-haired\t teacher, dismissed  because
\n     she had red hair. This is unreasonable in one sense. In
\n     another it\t is so\tunreasonable that it might almost be
\n     described as being done in bad faith; and, in fact, all
\n     these things run into one another.”\n<\/p>\n
      Hence  the claim made on behalf of the Government that
\nthe impugned  notifications are\t beyond\t the  reach  of\t the
\nadministrative law  cannot be accepted without qualification
\neven though  all the  grounds that  may be  urged against an
\nadministrative order may not be available against them.\n<\/p>\n
      Now,  the notifications  issued on  March 1,  1981 and
\nFebruary 28,  1982 under section 25 of the Customs Act, 1962
\nwhich grant  exemptions from  payment of certain duty beyond
\nwhat is\t mentioned in  them  are  issued  by  the  executive
\nGovernment. They  were issued  in  substitution\t of  earlier
\nnotifications  which   had  granted  total  exemption.\tSuch
\nnotifications have  to be  issued by  the  Government  after
\ntaking into consideration all relevant factors which bear on
\nthe reasonableness  of the  levy on  the  news-\t print.\t The
\nGovernment should  strike a  just-  and\t reasonable  balance
\nbetween the need for ensuring the right of people to freedom
\nof speech  and expression  on the  one hand  and the need to
\nimpose social  control on  the business\t of publication of a
\nnewspaper on  the other. In other words, the Government must
\nat all\tmaterial times\tbe conscious  of the fact that it is
\ndealing with  an activity protected by Article 19 (1) (a) of
\nthe Constitution
\n350<\/span>
\nwhich is  vital to our democratic existence. In deciding the
\nreasonableness of  restrictions imposed\t on any\t fundamental
\nright the court should take into consideration the nature of
\nthe right  alleged to  have been  infringed, the  underlying
\npurpose of  the restrictions  imposed, the  disproportion of
\nthe imposition and the prevailing conditions at the relevant
\ntime including\tthe social  values whose needs are sought to
\nbe satisfied by means of the restrictions. (See the State of
\nMadras v.  V.G. Rao<\/a>(l)).  The restriction in question is the
\nburden of  import duty\timposed on  newsprint. Section 25 of
\nthe Customs  Act, 1962\tunder which  the  notifications\t are
\nissued confers\ta power\t on the\t Central Government  coupled
\nwith a\tduty to\t examine the whole issue in the light of the
\npublic interest.  It provides that if the Central Government
\nis satisfied  that it is necessary in the public interest so
\nto do  it may  exempt generally either absolutely or subject
\nto such\t conditions goods  of any description from the whole
\nor any\tpart of\t the  customs  duty  leviable  thereon.\t The
\nCentral Government may if it is satisfied that in the public
\ninterest so  to do  exempt from\t the payment  of duty  by  a
\nspecial\t order\tin  each  case\tunder  circumstances  of  an
\nexceptional nature  to be  stated in such order any goods on
\nwhich duty  is leviable. The power exercisable under section
\n25 of the Customs Act, 1962 is no doubt discretionary but it
\nis not\tunrestricted, It  is useful  to refer  here  to\t the
\nobservations of\t Lord Denning  M.R, in\tBreen v. Amalgamated
\nEngineering Union(2) at page 190 read thus:\n<\/p>\n
\t\t“The discretion of a statutory body is never
\n     unfet -tered.  It\tis  a  discretion  which  is  to  be
\n     exercised according  to law.  That means at least this:
\n     the  statutory   body  must   be  guided\tby  relevant
\n     considerations and\t not by\t irrelevant. If its decision
\n     is influenced  by extraneous  considerations  which  it
\n     ought not\tto have taken into account then the decision
\n     cannot stand.  No matter  that the\t statutory body\t may
\n     have acted in good faith nevertheless the decision will
\n     be set  aside. That  is  established  by  Pad-field  v.
\n     Minister of  Agriculture Fisheries and Food [1968] A.C.
\n     997 which is a landmark in modern administrative law.”<\/p><\/blockquote>\n
\t\tIn any event any notification issued under a
\n     statute also
\n(1) [1952] S.C.R. 597.\n<\/p>\n
(2) [1971] 2 Q.B. 175.\n<\/p>\n
351<\/span><\/p>\n
being a\t ‘law’ as  defined under  Article 13  (3) (a) of the
\nConstitution is\t liable to) be struck down if it is contrary
\nto any\tof the\tfundamental rights guaranteed under Part III
\nof the Constitution.\n<\/p>\n
\t\t\t     VI
\n\t       Has there been proper exercise of power under
\n     section 25 (1) of the, Customs Act 1962 ?\n<\/p>\n
      Freedom  of press\t as the\t petitioners rightly  assert
\nmeans freedom  from interference  from authority which would
\nhave  the  effect  of  interference  with  the\tcontent\t and
\ncirculation of\tnewspapers. The\t most important raw material
\nin the\tproduction of a newspaper is the newsprint. The cost
\nand availability  of newsprint determine the price, size and
\nvolume of  the publication  and also  the quantum  of  news,
\nviews  and  advertisements  appearing  therein.\t It  is\t not
\ndisputed that  the cost of newsprint works out to nearly 60%
\nof the cost of production of newspaper. In the case of a big
\nnewspaper the  realisation by  the sale of newspaper is just
\nabout 40%  of its  total cost  of production.  The remaining
\ncost is met by advertisements revenue which is about 40%, by
\nrevenue from  waste sales  and job work which comes to about
\n5% and\trevenue from  other sources  such as the income from
\nproperties  and\t  other\t  investments\tof   the   newspaper
\nestablishment. These  figures have  been  derived  from\t the
\nstatement furnished  by one  of the big newspapers. The case
\nof all\tother big  newspapers may  be more or less the same.
\nThe financial  and other  difficulties felt by the newspaper
\npress in  securing newsprint  in  recent  years\t which\thave
\nbecome an  international phenomenon are set out in the Final
\nReport of  the International  Commission for  the  Study  of
\nCommunication Problems referred to above at page 141 thus:\n<\/p>\n
\t\t“Extremely serious on an international scale
\n     has  been\t the  effect  of  high\tcosts  of  important
\n     materials\tor   facilities..  -…\t -.-.-.-Paper  is  a
\n     material consumed\tin vast\t quantities whose  price  in
\n     recent years  has spiralled  out of  proportion to\t the
\n     general world-wide inflation… -… -As for newsprint,
\n     its price\ton world markets rose from a datum figure of
\n     100 in  1970 to  329 in  May 1977, and has continued to
\n     rise since. A sad by-product of this situation has been
\n     the intro-\n<\/p><\/blockquote>\n
352<\/span><\/p>\n
\t     duction of a covert form of censorship, as some
\n     Governments limit\tthe import  of newsprint, distribute
\n     it\t by  official  allocation  schemes,  and  use  these
\n     schemes  to   discriminate\t  against   the\t  opposition
\n     newspapers.”\n<\/p><\/blockquote>\n
      In Chapter 4 of the same Report at page 100 the Inter-\n<\/p><\/blockquote>\n
national Commission has observed thus:\n<\/p>\n
\t\t  “While  newspapers  which  are  commercial
\n     enterprises expect\t to sustain  themselves by sales and
\n     advertising,  they\t  are  not  always  viable  on\tthis
\n     traditional basis. Capital and profits from other media
\n     and from  business in  general are\t often injected into
\n     the newspaper  industry. In  many cases, the financing,
\n     or at  least the deficits are covered by governments or
\n     political bodies.\tAssistance from\t the State has taken
\n     various forms, including tax concessions not enjoyed by
\n     other industries,\treduced postal\tand telephone rates,
\n     guaranteed Government advertising, and subsidies to the
\n     price of newsprint. Although the press is suspicious of
\n     Government involvement  in its  affairs,  a  desire  to
\n     preserve variety by keeping the weaker papers alive has
\n     led to  consideration of various schemes. Direct grants
\n     to papers in need are made in seven European nations.
\n\t\t Smaller newspapers  and some  parts of\t the
\n     “quality”\tor   “specialized”  press  have\t experienced
\n     difficulties from a contraction of operations and size,
\n     which  has\t  led  to  limitations\ton  the\t variety  of
\n     information sources.  This has induced many governments
\n     to examine\t the possibility  of subsidies\tto help keep
\n     newspapers alive  or to establish new ones, in monopoly
\n     circulation areas\tand to promote plurality and variety
\n     in general.<\/p><\/blockquote>\n
      If  any duty  is levied on newsprint by Government, It
\nnecessarily has\t to  be\t passed\t on  to\t the  purchasers  of
\nnewspapers” unless   the  industry is  able to absorb it. In
\norder to  pass on  the duty  to the  consumer the  price  of
\nnewspapers has\tto be  increased.  Such\t increase  naturally
\naffects the circulation of newspapers adversely.\n<\/p>\n
     In Sakal’s case (supra), this Court has observed thus;\n<\/p>\n
353<\/span><\/p>\n
\t\t “The effect of raising the selling price of
\n     newspaper\tA   has\t been\tconsidered  by\t the   Press
\n     Commission. In  Paragraph\t164  of\t the  Report  it  is
\n     observed:\n<\/p>\n
\t\t    “The  selling price\t of  a\tpaper  would
\n\t  naturally  have   an\timportant   effect  on\t its
\n\t  circulation. In  this connection  we have examined
\n\t  the effect  of price\tcuts adopted  by two English
\n\t  papers at  Bombay on\tthe circulation of those two
\n\t  papers as  well as  of the leading paper which did
\n\t  not reduce  its price. Prior to 27th October 1952,
\n\t  Times of  India which\t had the highest circulation
\n\t  at Bombay  was being\tsold at Re. 0-2-6 while Free
\n\t  Press Journal\t and National  Standard\t which\trank
\n\t  next in circulation were being sold for Re. 0-2-0.
\n\t  On 27th  October, 1952, Free Press Journal reduced
\n\t  its price  to Rs.  0-1.0 and\twithin\ta  year\t had
\n\t  claimed to  have doubled  its circulation.  On 1st
\n\t  July, 1953,  the National  Standard was  converted
\n\t  into a  Bombay edition  of Indian  Express with  a
\n\t  selling price\t of Rs.\t 0-1-6. Within six months it
\n\t  too claimed to have doubled its circulation During
\n\t  this period  the Times  of  India  which  did\t not
\n\t  reduce its  selling price  continued to retain its
\n\t  readership. Thus  it would  appear that Free Press
\n\t  Journal and Indian Express by reducing their price
\n\t  have been  able to  tap new  readership which\t was
\n\t  latent in  the market\t but which could not pay the
\n\t  higher prices prevailing earlier.”\n<\/p>\n
”\t Though the prices of newspapers appear to be on the
\nlow side  it is\t a fact\t that even  so many  people find  it
\ndifficult to  pay that\tsmall price.  This is  what has been
\npointed out  by the  Press Commission in Paragraph 52 of its
\nreport. According to it the most common reason for people in
\nnot purchasing\tnewspapers is  the cost of the newspaper and
\nthe inability  of  the\thousehold  to  spare  the  necessary
\namount. This conclusion is based upon the evidence of a very
\nlarge  number\tof  individuals\t  and\trepresentatives\t  of
\nAssociations. We  would, therefore,  be justified in relying
\nupon it and holding that raising the price of newspaper even
\nby a small amount such as one
\n354<\/span>
\n     nP. in  order that its present size be maintained would
\n     adversely affect its circulation.”\n<\/p>\n
      This  is not  a  novel  phenomenon.  A  stamp  tax  on
\nnewspapers  came  to  be  levied  in  England  in  1712.  It
\nvirtually crippled  the growth of the English press and thus
\nbecame unpopular.  There was  a lot of agitation against the
\nsaid tax.  But on  its abolition in 1861, the circulation of
\nnewspapers increased enormously. The following account found
\nin the\tEncyclopaedia Britannica  (1962) Vol. 16 at page 339
\nis quite instructive:\n<\/p>\n
\t\t “Abolition  of\t “Taxes\t on  knowledge”.-The
\n     development of the press was enormously assisted by the
\n     gradual abolition of the “taxes on knowledge,” and also
\n     by the introduction of a cheap postal system……..
\n\t\tTo Lord Lytton, the novelist and politician,
\n     and subsequently  to Milner  Gibson and Richard Cobden,
\n     is chiefly\t due  the  credit  of  grappling  with\tthis
\n     question in Parliament to secure first the reduction of
\n     the tax  to  a  penny  in\t1836,  and  then  its  total
\n     abolition\tin   1855.  The\t  number  of   news   papers
\n     established from  the early  part\tof  1855,  when\t the
\n     repeal  of\t  the  duty  had  become  a  certainty,\t and
\n     continuing in  existence  at  the\tbeginning  of  1857,
\n     amounted  to   107;  26   were  metropolitan   and\t  81
\n     provincial. The  duties on\t paper itself  were  finally
\n     abolished in 1861.\n<\/p><\/blockquote>\n
\t      The abolition of the stamp taxes brought about
\n     such reductions  in the  prices of newspapers that they
\n     speedily began  to reach  the many\t instead of the few.
\n     Some idea of the extent of the tax on knowledge imposed
\n     in the early 19th century may be gathered from the fact
\n     that the  number of  stamps issued\t in 1820  was nearly
\n     29,400,000, and the incidence of the advertisement tax,
\n     fixed at  3s. 6d.\tin 1804,  made it impossible for the
\n     newspaper owner  to  pass\ton  the\t stamp\ttax  to\t the
\n     advertiser. In 1828 the proprietors of the Times had to
\n     pay  the\tstate  more  than    68,000  in\t stamp\tand
\n     advertisement taxes  and  paper  duty.  But  after\t the
\n     reduction of  the stamp  tax in 1836 from four pence to
\n     one penny,\t the circulation  of  English  news  papers,
\n     based on  the stamp  returns, rose\t from 39,000,000  to
\n     122,000,000 in 1854.”<\/p><\/blockquote>\n
355<\/span><\/p>\n
      The Second Press Commission in its Report (Vol. II) at
\npages 182-183  has stated that the figures of circulation of
\nnewspaper A  compiled by  the Audit  Bereau  of\t Circulation
\n(ABC) for the period January to June 1981 indicated that the
\ncirculation of newspapers in the period January to June 1981
\nwas 1.9%  lower than  in the  previous six months period The
\ndecline in  the circulation  of dailies was more in the case
\nof very\t big newspapers\t with circulation  of one  lakh\t and
\nabove than  in the  case of  smaller papers.  The Commission
\nsaid that  the decline\tin circulation\twould appear  to  be
\nattributable mainly  to two  factors-increase in  the retail
\nprice of  newspapers in September-October, 1980 and again in
\nApril-May, 1981\t and that  the\tincrease  in  retail  prices
\nappeared  to  have  become  necessary  following  continuing
\nincrease in newsprint prices in the last few years including
\nlevy of\t import duty  in 1981  and  increase  in  wages\t and
\nsalaries cost  on account of Palekar Award. Of these factors
\nwhich  were   responsible  for\t increase  in\tprices,\t the
\nimposition of  import duty  on newsprint  was on  account of
\nState action.  This aspect  of the  matter is  not seriously
\ndisputed by the Government.\n<\/p>\n
      The pattern of the law imposing customs duties and the
\nmanner in  which it  is operated to a certain extent exposes
\nthe citizens  who are  liable to  pay customs  duties to the
\nvagaries  of  executive\t discretion.  While  parliament\t has
\nimposed duties\tby enacting  the Customs  Act, 1962  and the
\nCustoms Tariff\tAct, 1975, the Executive Government is given
\nwide power  by section\t25 of the Customs Act, 1962 to grant
\nexemptions from\t the levy  of Customs duty. It is ordinarily
\nassumed that  while such  power to grant exemptions is given
\nto the\tGovernment it  will consider  all  relevant  aspects
\ngoverning the  question whether\t exemption should be granted
\nor not.\t In the instant case in 1975 when the Customs Tariff
\nAct,  1975  was\t enacted,  40%\tad  valorem  was  levied  on
\nnewsprint even\tthough it  had been exempted from payment of
\nsuch  duty.   If  the  exemption  had  not  been  continued,
\nnewspaper publishers had to pay 40×6 ad valorem customs duty
\non the\tcoming into  force of  the Customs Tariff Act, 1975.
\nThen again in 1982 by the Finance Act, 1982 an extra levy of
\nRs. 1,000  per tonne  was  G  imposed  in  addition  to\t the
\noriginal 40% ad valorem duty even though under the exemption
\nnotification the  basic duty  had been\tfixed at  10% of the
\nvalue  of   the\t imported   newsprint.\tNo   information  is
\nforthcoming from  the Government as to whether there was any
\nmaterial which\tjustified the  said additional\tlevy. It  is
\nalso not  clear why  this  futile  exercise  of\t levying  an
\nadditional duty of
\n356<\/span>
\nRs. 1,000  per tonne  was done\twhen under  the notification
\nissued under section 25 of the Customs Act, 1962 on March 1,
\n1981 which  was in  force then,\t customs duty  on  newsprint
\nabove  10%  ad\tvalorem\t had  been  exempted.  As  mentioned
\nelsewhere in  the course  of this judgment while levying tax
\non an activity which is protected
\n is also by Article 19(1)(a) a greater degree of care should
\nbe exhibited.  While it\t is indisputable  that the newspaper
\nindustry should\t also bear its due share of the total burden
\nof taxation alongwith the rest of the community when any tax
\nis specially  imposed on  newspaper industry,  it should  be
\ncapable of  being justified  as a  reasonable levy  in court
\nwhen  its   validity  is   challenged.\tIn  the\t absence  of
\nsufficient material,  the levy\tof 40%\tplus Rs.  1,000\t per
\ntonne would become vulnerable to attack. If the levy imposed
\nby the\tstatute itself\tfails, there  would be\tno  need  to
\nquestion the  notifications issued  under section  25 of the
\nCustoms Act,  1962. But\t having\t regard\t to  the  prevailing
\nlegislative  practice\tlet  us\t assume\t that  in  order  to
\ndetermine the  actual levy we should take into consideration
\nnot merely  the rate of duty mentioned in the Customs Tariff
\nAct, 1975  but also any notification issued under section 25
\nof the\tCustoms Act,  1962 which  is in force. Even then the
\nreasons given by the Government to justify the total customs
\nduty of\t 15% levied  from March 1, 1981 or Rs. 825 per tonne
\nas it  is currently being levied appear to be inadequate. In
\nthe Finance  Minister’s speech delivered on the floor of the
\nLok Sabha  in 1981,  the first\treason given for the levy of
\n15% duty  was that  it was intended “to promote a measure of
\nrestraint in  the consumption of imported newsprint and thus
\nhelp in conserving foreign exchange”. This ground appears to
\nbe not\ttenable for  two reasons.  In the  counter-affidavit
\nfiled on  behalf of  the Government,  it is  stated that the
\nallegation that\t the position of foreign exchange reserve is
\ncomfortable is\tirrelevant, it.\t This shows  that nobody  in
\nGovernment had\tover taken  into consideration the effect of
\nthe import  of newsprint  on the  foreign  exchange  reserve
\nbefore issuing\tthe notifications levying 15% duty. Secondly
\nno newspaper  owner can import newsprint directly- newsprint
\nimport is  canalised through the State (Trading Corporation.
\nIf excessive  import of\t newsprint adversely affects foreign
\nexchange reserve,  the State  Trading Corporation may reduce
\nthe import  of newsprint  and allocate\tlesser\tquantity  of
\nimported newsprint  to newspaper  establishments.  There  is
\nhowever, no  need to  impose import  duty  with\t a  view  to
\ncurbing\t excessive  import  of\tnewsprint.  In\tthe  Finance
\nMinister’s speech  there is  no reference to the capacity of
\nthe newspaper industry to bear the levy 15% of
\n357<\/span>
\nduty. In  the counter-affidavit\t it  is\t asserted  that\t the
\nextent of  A burden faced by the newspaper industry in India
\nis irrelevant  to the levy of import duty on newsprint. This
\nclearly\t shows\tagain  that  the  Government  had  not\talso
\nconsidered a vital aspect of the question before withdrawing
\nthe total  exemption which  was being  enjoyed by  newspaper
\nindustry  till\t March\t1,1981\tand  imposing  15%  duty  on
\nnewsprint.\n<\/p>\n
      The  petitioners have  alleged that  the imposition of
\ncustoms duty  has compelled them to reduce the extent of the
\narea of\t the newspapers\t for advertisements  which supply  a
\nmajor part of the sinews of a newspaper and consequently has
\nadversely affected  their revenue from advertisements. It is
\nargued by  them relying upon the ruling in Bennett Coleman’s
\ncase (supra)  that Article  19(1) (a)  is infringed thereby.
\nOur attention  is drawn to the following passages in Bennett
\nColeman’s case (supra) which are at pages 777778 and at page
\n782:\n<\/p>\n
\t\t    “Publications  means  dissemination\t and
\n     circulation The  press has\t to carry on its activity by
\n     keeping in view the class of readers, the conditions of
\n     labour,   price\tof   material,\t  availability\t  of
\n     advertisements, size  of paper  and the different kinds
\n     of news comments and views and advertisements which are
\n     to be  published and  circulated  The  law\t which\tlays
\n     excessive and  prohibitive burden\twhich would restrict
\n     the circulation  of a  newspaper will  not be  saved by
\n     Article  19(2).   If  the\t area  of  advertisement  is
\n     restricted. price\tof paper  goes up. In the price goes
\n     up circulation  will go  down. This  was held  in Sakal
\n     Papers Case  (supra) to  be the  direct consequence  of
\n     curtailment  of   advertisement.  The   freedom  of   a
\n     newspaper\tto   publish  any  number  of  pages  or  to
\n     circulate it  to any number of persons has been held by
\n     this Court\t to be\tan integral  part of  the freedom of
\n     speech and\t expression. This  freedom  is\tviolated  by
\n     placing restraints upon something which is an essential
\n     part of  that freedom.  A restraint  on the  number  of
\n     pages, a  restraint on  circulation and  a restraint on
\n     advertisements  would  affect  the\t fundamental  rights
\n     under Article  19(1)(a) on\t the aspects of propagation,
\n     publication and circulation……..
\n\t      The various provisions of the newsprint import
\n     policy have  been examined\t to indicate  as to  how the
\n     petitioners’ II
\n358<\/span>
\n\t       fundamental rights have been infringed by the
\n     restrictions on  page limit,  prohibition\tagainst\t new
\n     newspapers\t  and\tnew   editions.\t  The\teffect\t and
\n     consequences of the impugned policy upon the newspapers
\n     is directly  controlling the  growth and circulation of
\n     newspapers. The  direct effect  is the restriction upon
\n     circulation of  newspapers. The  direct effect  is upon
\n     growth of\tnewspapers through  pages. The direct effect
\n     is that  newspapers  are  deprived\t of  their  area  of
\n     advertisement. The\t direct\t effect\t is  that  they\t are
\n     exposed   to financial  loss. The direct effect is that
\n     freedom of speech and expression is infringed.”<\/p><\/blockquote>\n
      In meeting the above contention the Government relying
\non the\tdecision in  Hamdard Dawakhana\t( Wakf\t) Lal  Kuan,
\nDelhi &\t Anr. v.  Union of  India &  Ors.<\/a>(1) has  pleaded in
\ndefence of  its action\tthat the right to publish commercial
\nadvertisement  is   not\t part\tof  freedom  of\t speech\t and
\nexpression. We\thave carefully\tconsidered the\tdecision  in
\nHamdard Dawakhana’s  case (supra).  The main  plank of\tthat
\ndecision was that the type Of advertisement dealt with there
\ndid not carry with it the protection of Article 19(1)(a). On
\nexamining the  history of  the legislation,  the surrounding
\ncircumstances and  the scheme  of the  Act  which  had\tbeen
\nchallenged  there   namely  the\t Drugs\tand  Magic  Remedies
\n(Objectionable Advertisements)\tAct 1954  (21 of  1954)\t the
\nCourt held that the object of that Act was the prevention of
\nself-medication\t  and\t self-treatment\t   by\t prohibiting
\ninstruments which  may be used to advocate the same or which
\ntended to spread the evil. The Court relying on the decision
\nof the\tAmerican Supreme Court in Lewis J. Valentine v. F.J.
\nChresten sen (2) observed at pages 687-689 thus:\n<\/p>\n
\t\t“It cannot be said that the right to publish
\n     and distribute commercial advertisements advertising an
\n     individual’s personal  business is a part of freedom of
\n     speech  guaranteed\t  by  the   Constitution.  In  Lewis
\n     Valentine v.  F.). Chrestensen  it was  held  that\t the
\n     constitutional right of free speech is not infringed by
\n     prohibiting  the\tdistribution  in   city\t streets  of
\n     handbills bearing\ton one side a protest against action
\n     taken by  public officials and on the other advertising
\n     matter. The object of affixing of the protest to the
\n(1) [1960] 2 S.C.R. 671.\n<\/p><\/blockquote>\n
(2) 86 Law ED. 1262.\n<\/p>\n
359<\/span><\/p>\n
advertising circular was the evasion of the prohibition of a
\ncity Ordinance\tforbidding  the\t distribution  in  the\tcity
\nstreets of  commercial and  business advertising matter. Mr.
\nJustice Roberts, delivering the opinion of the court said:\n<\/p>\n
      “This  Court has\tunequivocally held  that the streets
\nare proper  places  for\t the  exercise\tof  the\t freedom  of
\ncommunicating  information  and\t disseminating\topinion\t and
\nthat, though the states and municipalities may appropriately
\nregulate the  privilege in the public interest, they may not
\nunduly burden  or prescribe  its employment  in these public
\nthoroughfares. We  are equally\tclear that  the Constitution
\nimposed no  such restraint  on government as respects purely
\ncommercial  advertising\t  y-..\t-If   the   respondent\t was
\nattempting to  use the\tstreets of  New York by distributing
\ncommercial  advertising\t  the  prohibition   of\t  the\tCode
\nprovisions was lawfully invoked against such conduct.”\n<\/p>\n
      It cannot be said, therefore, that every advertisement
\nis a  matter dealing  with freedom  of speech  nor can it be
\nsaid that  it is  an expression\t of ideas. In every case one
\nhas to\tsee what is the nature of the advertisement and what
\nactivity falling  under Art.  19(I) it seeks to further. The
\nadvertisements in  the instant\tcase relate  to commerce  or
\ntrade and  not to  propagating of  ideas; and advertising of
\nprohibited drugs  or commodities of which the sale is not in
\nthe interest  of the  general public cannot be speech within
\nthe meaning  of freedom\t of speech and would not fall within
\nArt. 19(1)(a).\tThe main  purpose and  true intent  and aim,
\nobject and scope of the Act is to prevent self-medication or
\nself-treatment and for that purpose advertisement commending
\ncertain drugs  and medicines have been prohibited. Can it be
\nsaid that this is an abridgement of the petitioners right of
\nfree speech  ?\tIn  our\t opinion  it  is  not.\tJust  as  in
\nChamarbaugwalla’s case\t1957 S.C.R.  930 it  was  said\tthat
\nactivities undertaken  and carried on with a view to earning
\nprofits e.g.  the business  of betting and gambling will not
\nbe protected  as falling  within  the  guaranteed  right  of
\ncarrying on  business or trade, so it cannot be said that an
\nadvertisement commending drugs and substances an
\n360<\/span>
\n\t\t appropriate cure for certain discases is an
\n     exercise of the right of freedom of speech.”
\n      In  the above  said case\tthe  Court  was\t principally
\ndealing with  the right\t to advertise  prohibited drugs,  to
\nprevent self-medication\t and self-treatment.  That  was\t the
\nmain issue in the case. It is no doubt true that some of the
\nobservations referred  to above\t go beyond  the needs of the
\ncase and  tend to affect the right to publish all commercial
\nadvertisements. Such  broad observations appear to have been
\nmade in\t the light  of the decision of the American Court in
\nLewis J.  Valentine v. F. .J. Chrestensen (supra), But it is
\nworthy of  notice that\tthe view  expressed in this American
\ncase has  not been  fully approved  by the  American Supreme
\nCourt itself  in its  subsequent decisions.  We shall  refer
\nonly to\t two of\t them. In his concurring judgment in William
\nB. Cammarano  v, United States of America(1) Justice Douglas
\nsaid ”\tValentine  v.  Chrestensen  held  that\tbusiness  of
\nadvertisements and  commercial matters\tdid  not  enjoy\t the
\nprotection of  the First  Amendment, made  applicable to the
\nStates by  the Fourteenth. The ruling was casual, almost off
\nhand. And  it has  not survived reflection”. In Jeffrey Gole
\nBigelow v.  Commonwealth of Virginia(2) the American Supreme
\nCourt held  that the  holding in  Lewis J. Valentine v. F.J.
\nChrestensen (supra) was distinctly a limited one. In view of
\nthe foregoing,\twe feel\t that the  observations made  in the
\nHamdard Dawakhana’s case (supra) are too broadly stated’ and
\nthe Government\tcannot draw  much support from it. We ate of
\nthe view that all commercial advertisements cannot be denied
\nthe protection\tof Article  19 (1)  (a) of  the Constitution
\nmerely because\tthey are issued by businessmen. In any event
\nthe Government\tcannot derive  any assistance from this case
\nto sustain the impugned notifications.\n<\/p>\n
      It was next urged on behalf of the Government that the
\nlevy of customs duty on newsprint was not strictly a levy on
\nnewsprint as  such since  though customs  duties were levied
\nwith reference to goods, the taxable event was the import of
\ngoods within the customs barrier and hence there could be no
\ndirect effect  on the  freedom of  speech end  expression by
\nvirtue of  the levy  of customs\t duty on newsprint. Reliance
\nwas placed in support of the above contention
\n(1) 358 US 498: 3 L ed 2d 462
\n(2) 421 US 809: 44 L ed 2d 600 at 610
\n361<\/span>
\nOn the\tdecision in  In re Sea Customs Act.(l) That decision
\nwas A  rendered on  a reference\t made by the President under
\nArticle 143  of the  Constitution requesting  this Court  to
\nrecord its  opinion on\tthe  question  whether\tthe  Central
\nGovernment could  levy customs\tduty on\t goods imported by a
\nState. The  contention of the majority of the States in that
\ncase was  that\tthe  goods  imported  by  them\tbeing  their
\nproperty no  tax by way of customs could be levied by reason
\nof Article  289 (t)  of the  Constitution which exempted the
\nproperty of  a State  from taxation by the Union. This Court
\n(majority 5,  minority 4) held that in view of clause (1) of
\nArticle 289 which was distinct from clause (2) thereof which
\nprovided that  nothing in  clause (1)  of Article  289 would
\nprevent\t the   Union  from   imposing  or   authorising\t the
\nimposition of  any tax to such extent, if any, as Parliament
\nmight by  law provide  in respect  of a trade or business of
\nany kind  carried on  by or  on behalf\tof a  State  or\t any
\noperations connected  therewith\t or  any  property  used  or
\noccupied for  the purposes  of such trade or business or any
\nincome accruing\t or arising  in connection therewith and the
\nother provisions of the Constitution which enabled the Union
\nto levy different kinds of taxes, customs duty levied on the
\nimportation of\tgoods was  only a to levied on international
\ntrade and  not on  property. The Court further held that the
\nimmunity granted  under Article\t 289 (1)  in favor of States
\nhad to\tbe restricted  to taxes\t levied directly on property
\nand even  though customs  duties had  reference to goods and
\ncommodities they  were not  taxes on  property and hence not
\nwithin the  exemption in Article 289 (1). The above decision
\nis again  of very  little assistance to the Government since
\nit cannot  be denied  that  the\t levy  of  customs  duty  on
\nnewsprint  used\t  in  the  production  of  newspapers  is  a
\nrestriction on\tthe activity  of publishing  a newspaper and
\nthe levy  of customs  duties had  a direct  effect  on\tthat
\nactivity. There\t exists no  analogy between  Article 289 (l)
\nand Article  19 (1)  (a) and  (2) of the Constitution. Hence
\nthe levy  cannot be  justified merely  on the ground that it
\nwas not on any property of the publishers of newspapers.\n<\/p>\n
      Our  attention has  been\tparticularly  drawn  to\t the
\nstatement  of\tthe  Finance   Minister\t that\tone  of\t the
\nconsiderations which  prevailed upon  the Government to levy
\nthe  customs   duty  was   that\t the   newspapers  contained
\n‘piffles’. A ‘piffle’ means foolish nonsense. It appears
\n(1) [1964] 3 S.C.R. 787.\n<\/p>\n
362<\/span><\/p>\n
that one  of the  reasons for  levying\tthe  duty  was\tthat
\ncertain writings  in newspapers\t appeared to the Minister as
\npiffles’.  Such\t  action  is   not  permissible\t  under\t our
\nConstitution for  two reasons-(i)  that the  judgment of the
\nMinister about\tthe nature  of writings\t cannot\t be  a\ttrue
\ndescription of\tthe writings  and  (ii)\t that  even  if\t the
\nwritings are  piffles it  cannot be  a ground for imposing a
\nduty will  whiohhinder circulation  of newspapers.  In\tthis
\nconnection it  is useful  to refer  to the  decision of\t the
\nAmerican Supreme  Court in  Robert E.  Hannegan v.  Esquire,
\nInc.(l) in which it was held that a publication could not be
\ndeprived of  the  benefit  of  second  class  mailing  rates
\naccorded to  publications disseminating\t “information  of  a
\npublic character, or devoted literature, the sciences, arts,
\nor some special industry” because its contents might seem to
\nthe Postmaster General by reason of vulgarity or poor taste,
\nnot to\tcontribute  to\tthe  public  good.  Justice  Douglas
\nobserved in that decision thus:\n<\/p>\n
\t\t “It is\t plain, as  we have  said, that\t the
\n     favorable\tsecond\t class\t rates\t were\tgranted\t  to
\n     periodicals meeting  the  requirements  of\t the  Fourth
\n     condition, so  that the  public good  might  be  served
\n     through a\tdissemination of  the class  of\t periodicals
\n     described. But  that is  a far  cry from  assuming that
\n     Congress had  any idea  that  each\t applicant  for\t the
\n     second-class rate\tmust convince the Postmaster General
\n     that his  publication  positively\tcontributes  to\t the
\n     public good  or public  welfare. Under  our  system  of
\n     government there  is an  accommodation for\t the  widest
\n     varieties of tastes and ideas. What is good literature,
\n     what has  educational value,  what\t is  refined  public
\n     information, what\tis good art, varies with individuals
\n     as it  does  from\tone  generation\t to  another.  There
\n     doubtless would  be a  contrariety of  views concerning
\n     Cervantes’ Don  Quixote, Shakespeare’s  Venus & Adonis,
\n     or Zola’s\tNana. But  a requirement  that literature or
\n     art conform  to some  norm prescribed  by\tan  official
\n     smacks of\tan ideology foreign to our system. The basic
\n     Values implicit  in  the  requirements  of\t the  Fourth
\n     condition can be served only by uncensored distribution
\n     of\t literature.   From  the   multitude  of   competing
\n     offerings the  public will\t pick and choose. What seems
\n     to one to be trash may have for others fleeting or even
\n     enduring values.”\n<\/p><\/blockquote>\n
(1) 327 U.S. 146: 90 L. Ed. 586
\n363<\/span>
\n      Matters concerning the intellect and ethics do undergo
\nfluctuations from  era to  era.\t The  world  of\t mind  is  a
\nchanging one.  A It is not static. The streams of literature
\nand of\ttaste and  judgment in that sphere are not stagnant.
\nThey have  a quality  of freshness  and vigour. They keep on
\nchanging from  time to\ttime, from  place to  place and from
\ncommunity to community.\n<\/p>\n
      It  is one thing to say that in view of considerations
\nrelevant to  public finance  which require  every citizen to
\ncontribute a  reasonable amount\t to public exchequer customs
\nduty  is  leviable  even  on  newsprint\t used  by  newspaper
\nindustry and  an entirely  different thing  to say  that the
\nlevy is\t imposed because  the newspapers  generally  contain
\n‘piffles’. While  the former may be valid if the circulation
\nof newspapers  is not  affected prejudicially, the latter is
\nimpermissible under  the Constitution  as the  levy is being
\nmade  on   a  consideration  which  is\twholly\toutside\t the
\nconstitutional limitations.  The Government  cannot arrogate
\nto itself  the power  to prejudge  the nature of contents of
\nnewspapers even\t before they  are printed.  Imposition of  a
\nrestriction  of\t  the  above   kind  virtually\t amounts  to
\nconferring on  the  Government\tthe  power  to\tprecensor  a
\nnewspaper. The\tabove reason  given by\tthe Minister to levy
\nthe custom duty is wholly irrelevant.\n<\/p>\n
      To  sum up,  the counter-affidavit  filed on behalf of
\nthe Government\tin these  cases does  not show\twhether\t the
\nGovernment ever\t considered the\t relevant matters.  It\tsays
\nthat the  extent of burden on the newspaper industry imposed
\nby the\timpugned  levy\tis  irrelevant.\t It  says  that\t the
\nposition that foreign exchange reserve is comfortable is not
\nrelevant. It  does not\tsay  that  the\tincreasing  cost  of
\nimported newsprint was taken into consideration. The Finance
\nMinister says  that the\t levy was  imposed because  he found
\npiffles’ in  some newspapers.  There is\t no reference to the
\neffect of  the implementation  of the  Palekar Award  on the
\nnewspaper industry.  It does  not also\tstate what effect it
\nwill have  on the  members of the public who read newspapers
\nand how far it will reduce the circulation of newspapers.\n<\/p>\n
\t   It is argued on behalf of the Government that the
\neffect of  the impugned levy being minimal, there is no need
\nto consider  the contentions  urged by\tthe petitioners.  As
\nobserved by  Lord Morris  of Borth-Y-Gest  in Honourable Dr.
\nPaul Borg Olivier & Anr v. Honourable Dr. Anton Buttigieg(l)
\na case from Malta, that where
\n(1) 11967] A.C. 115 (P.C.)
\n364<\/span>
\nfundamental rights  and freedom\t of the individual are being
\nconsidered, a  court should be cautious before accepting the
\nview that  some particular  disregard of  them is of minimal
\naccount. The  learned Lord  observed in\t the above case that
\nthere was  always the  likelihood  of  the  violation  being
\nvastly widened\tand extended with impunity. He also referred
\nto the\twords of  Portia-‘Twill be recorded for a precedent,
\nand many  an error  by the  same example  will rush into the
\nstate’, and the following passage from the American case i e
\nThomas v. Collins (I)
\n\t\t “The restraint\t is not\t small\twhen  it  is
\n     considered what was restrained. The right is a national
\n     right, federally  guaranteed. There  is some modicum of
\n     freedom of\t thought,  speech  and\tassembly  which\t all
\n     citizens of  the republic\tmay exercise  throughout its
\n     length and\t breadth, which\t no state, nor all together,
\n     not  the  nation  itself,\tcan  prohibit,\trestrain  or
\n     impede. If the restraint were smaller than it is, it is
\n     from petty\t tyrannies that\t large ones  take  root\t and
\n     grow. This\t fact can  be more  plain than when they are
\n     imposed on\t the most  basic  right\t of  all.  Seedlings
\n     planted in\t that soil  grow great\tand, growing,  break
\n     down the foundations of liberty.”\n<\/p>\n
      In  the above  decision the  Privy Council  cited with
\napproval  the\tview  expressed\t by  this  Court  in  Romesh
\nThappar’s case (supra) and in Martin v. City of Struthers(2)
\nThe Privy Council observed thus:\n<\/p>\n
\t\t “A measure  of interference  with the\tfree
\n     handling of  the newspaper and its free circulation was
\n     involved in the prohibition which the circular imposed.
\n     It was  said in  an Indian case Romesh Thappey v. State
\n     of Madras)<\/a>:\n<\/p><\/blockquote>\n
\t       “There can be no doubt that freedom of speech
\n     and expression includes freedom of prepagation of ideas
\n     and that  freedom is secured by freedom of circulation.
\n     ‘Liberty of circulation is as essential to that freedom
\n     as\t the   liberty\tof   publication.   Indeed   without
\n     circulation the publication would be of little value.”\n<\/p><\/blockquote>\n
(2) [1944] 323 U.S. 516
\n(3)[1943] 319 U.S. 141
\n365<\/span>
\n      Similar  thoughts were  expressed by  Black J.  in his
\njudgment in Martain v. City of Struthers when he said:\n<\/p>\n
\t\t “Freedom to distribute information to every
\n     citizen wherever he desires to receive it is so clearly
\n     vital to  the preservation\t of  a\tfree  society  that,
\n     putting aside  reasonable police and health regulations
\n     of time  and manner  of distribution,  it must be fully
\n     preserved”.<\/p><\/blockquote>\n
      We  respectfully endorse\tthe high principle expounded
\nby the\tPrivy Council  in the  above case.  Moreover in\t the
\nabsence of  a proper examination of all relevant matters, it
\nis not\tpossible to  hold that\tthe effect  of the  levy  is
\nminimal. In  fact the  impact of  the impugned levy in these
\ncases is  not minimal at all. For example, The Tribune Trust
\nhas to\tpay Rs.\t 18.7 lacs and The Statesman Ltd. has to pay
\nRs. 35.9  lacs by  way of customs duty on newsprint imported
\nduring 1983-84.\t Other big newspapers have also to pay large
\nsums by way of customs duty annually.\n<\/p>\n
      The  question in\tthe present cases is whether the tax
\nhas been  shown to  be so burdensome as to warrant its being
\nstruck down  ? The  petitioners have  succeeded in showing a
\nfall in\t circulation but whether it is a direct consequence,
\nof the\tcustoms levy  and the increase in price has not been
\nduly established.  It may  be due  to various circumstances.
\nThe fall  in circulation  may be  due to the general rise in
\ncost of\t living and the’ reluctance of people to buy as many
\nnewspapers as  they used to buy before. It may be due to bad
\nmanagement. It\tmay be due to change of editorial policy. It
\nmay be due to the absence of certain feature writers. It may
\nbe due\tto other  circumstances which  it is not possible to
\nenumerate.  Except  the\t synchronizing\tof  time,  there  is
\nnothing to  indicate that  the slight fall in circulation is
\ndirectly due  to the  levy  of\tcustoms\t duty.\tOne  curious
\nfeature of  the case  is that  the petitioners\thave made no
\nefforts to  produce their  balance sheets or profit and loss
\nstatements to  give us\ta true\tidea of\t how burdensome\t the
\ncustoms levy  really is.  On the  other hand, the Government
\nalso has made no efforts to show the effect of the impact of
\nthe levy  on the  newspaper industry  as a  whole. All these
\nyears,\tthe   very  exemption  which  they  granted  was  an
\nindication that the levy was likely to have a serious impact
\non the\tnewspaper industry.  Even now the exemption given to
\nthe small and medium newspapers shows that there is bound to
\nbe an  impact. No  effort has  been made  on the part of the
\nGovernment to show
\n366<\/span>
\nthe precise  nature of\tthe impact.  On the  other hand, the
\ncase  of   the\tGovernment   appears   to   be\t that\tsuch
\nconsiderations\t are   entirely\t  irrelevant,\tthough\t the
\noutstanding  fact   remains  that  for\tseveral\t years,\t the
\nGovernment itself  thought that the newsprint deserved total
\nexemption. On  the material now available to us, while it is
\nnot possible  to come  to the  conclusion that the effect of
\nthe levy   is  indeed so  burdensome as to affect freedom of
\nthe press,  we are  also not  able to come to the conclusion
\nthat it\t will not be burdensome. This a matter which touches
\nthe freedom of the press which is, as we said, the very soul
\nof democracy.  This is certainly not a question which should
\nbe decided  on the  mere question  of burden of proof. There
\nare factors  indicating that  the present levy\tis heavy and
\nis perhaps  heavy enough  to affect  circulation. On  such a
\nvital issue,  we cannot merely say that the petitioners have
\nnot placed  sufficient material\t to establish  the  drop  in
\ncirculation is directly linked to increase of the levy when,
\non the side of the Government the entire exercise is thought
\nto be irrelevant. Hence there appears to be a good ground to
\ndirect the  Central Government\t to  reconsider\t the  matter
\nafresh in the light of what has been said here.
\n\t\tIs the classification of newspapers made for
\n     the purpose of exemption violative of Article 14 7
\n       We  do  not,  however,  see  much  substance  in\t the
\ncontention   of\t  some\t of   the   petitioners\t  that\t the
\nclassification of  the newspapers into small, medium and big
\nnewspapers for purposes of levying customs duty is violative
\nof Article  14 of the Constitution. The object of  exempting
\nsmall newspapers  from\tthe  payment  of  customs  duty\t and
\nlevying 5%  ad valorem\t(now  Rs.  275\tper  MT)  on  medium
\nnewspapers while levying full customs duty on big newspapers
\nis to  assist the  small and  medium newspapers\t in bringing
\ndown their  cost of  production. Such  papers do not command
\nlarge advertisement  revenue. Their  area of  circulation is
\nlimited and  majority of  them\t  are  in  Indian  languages
\ncatering to  rural sector.  We do not find anything sinister
\nin the object nor can it be said that the classification has
\nno nexus  with the  object to  be achieved.  As observed  by
\nMathew, J.  in the  Bennett Coleman’s case (supra) it is the
\nduty of\t the State  to encourage  education  of\t the  masses
\nthrough the  medium of\tthe press  under Article  41 of\t the
\nConstitution. We? therefore, reject this contention.\n<\/p>\n
367<\/span><\/p>\n
\t\t\t    VIII
\n\t\t\t   Relief
\n      Now  arises the  question relating  to the  nature  of
\nrelief that  may be  granted in these petitions. These cases
\npresent a  peculiar  difficulty\t which\tarises\tout  of\t the
\npattern of  legislation under consideration. If the impugned
\nnotifications ale  merely quashed,  they being notifications
\ngranting exemptions,  the exemptions granted under them will
\ncease. Will such quashing revive the notification dated July
\n15,1977 which was in force prior to March 1,1981 under which
\ntotal exemption\t had been  granted ? We do not think so. The
\nimpugned notification  dated March  1, 1981  was  issued  in
\nsupersession of\t the notification  dated  July\t15,1977\t and
\nthereby it  achieved two objects-the notification dated July
\n15,1977 came to be repealed and 10% ad valorem. customs duty
\nwas imposed  on newsprint. Since the notification dated July
\n15,1977 had been repealed by the Government of India itself,
\nit cannot  he revived on the quashing of the notification of
\nMarch 1,1981.  The effect  of such  quashing of a subsequent
\nnotification on\t an earlier  notification in whose place the
\nsubsequent notification\t was issued  has been  considered by
\nthis Court  in B.N.  Tiwari v. Union of India and Ors.<\/a>(1) In
\nthat case  the facts  were these: in 1952, a ‘carry forward’
\nrule governing\tthe Central  Service was  introduced whereby
\nthe unfilled  reserved vacancies  of a particular year would
\nbe carried forward for one year only. In 1955 the above rule
\nwas substituted\t by  another  providing\t that  the  unfilled
\nreserved vacancies  of a  particular year  would be  carried
\nforward for two years. In T. Devadasan v. The Union of India
\n& Anr.<\/a>(2)  the 1955  rule was declared unconstitutional. One
\nof the\tquestions which arose for consideration in this case
\n‘Tiwari’s case (supra) was whether the 1952 rule had revived
\nafter the 1955 rule was struck down. This Court held that it
\ncould not revive. The following are the observations of this
\nCourt on the above question:\n<\/p>\n
\t       “We shall first consider the question whether
\n     the carry forward rule of 1952 still exists. It is true
\n     that in Devadasan’s case, the final order of this Court
\n     was in these terms:-\n<\/p><\/blockquote>\n
\t “In the result the petition succeeds partially and
\n(1) [1965] 2 S.C.R. 421
\n(2) [1964] 4 S.C.R, 680
\n368<\/span>
\n     the carry\tforward rule as modified in 1955 is declared
\n     invalid.”\n<\/p>\n
\t     That however does not mean that this Court held
\n     that the 1952-rule must be deemed to exist because this
\n     Court said\t that the  carry forward rule as modified in
\n     1955 was  declared invalid.  The carry  forward rule of
\n     1952 was substituted the carry forward by rule of 1955.
\n     On this  substitution the\tcarry forward  rule of\t1952
\n     clearly ceased  to exist because its place was taken by
\n     the carry\tforward rule  of 1955.\tThus by promulgating
\n     the new  carry forward  rule in 1955, the Government of
\n     India itself  canceled the\t carry forward rule of 1952.
\n     When therefore this Court struck down the carry forward
\n     rule as  modified in  1955 that  did not  mean that the
\n     carry forward  rule of 1952 which had already ceased to
\n     exist, because  the Government of India itself canceled
\n     it and  had substituted  a modified rule in 1955 in its
\n     place, could  revive. We  are therefore of opinion that
\n     after the\tjudgment of  this Court\t in Devadasan’s case
\n     there is  no carry\t forward rule  at all, for the carry
\n     forward rule  of 1955  was struck\tdown by\t this  Court
\n     while the\tcarry forward  rule of\t1952 had  ceased  to
\n     exist when\t the Government\t of  India  substituted\t the
\n     carry forward rule Of 1955 in its place.”\n<\/p>\n
      In Firm A.T.B. Mehtab Majid & Co. v. State of Madras &
\nAnr.(1) also  this Court has taken the view that once an old
\nrule has  been substituted by a new rule, it ceases to exist
\nand it\tdoes not  get revived  when the\t new  rule  is\theld
\ninvalid.\n<\/p>\n
      The  rule in  Mohd. Shaukat  Hussain Khan\t v. State of
\nAndhra Pradesh<\/a>(2)  is inapplicable  to these  cases. In that
\ncase the  subsequent law  which modified the earlier one and
\nwhich was  held to  be void  was one  which according to the
\nCourt could  not have  been  passed  at\t all  by  the  State
\nLegislature. In\t such a case the earlier law could be deemed
\nto  have   never  been\t modified  or  repealed\t and  would,
\ntherefore, continue  to be  in force.  It was strictly not a
\ncase of revival of an earlier law which had been repealed or
\nmodified on
\n(1) [19631 Supp. 2 S.C.R. 435 at 446.\n<\/p>\n
(2) [1975] 1 S.C.R, 429
\n369<\/span>
\nthe striking  down of  a later law which purported to modify
\nor repeal A the earlier one. It was a case where the earlier
\nlaw had\t not been  either modified  or repealed effectively.
\nThe decision  of this  Court in\t Shri  Mulchand\t Odhavji  v.
\nRojkot Borough Municipality<\/a> is also distinguishable. In that
\ncase the State Government had been empowered by section 3 of
\nthe Saurashtra\tTerminal Tax  and Octroi  Ordinance  (47  of
\n1949) to impose octroi duty in towns and cities specified in
\nSchedule I  thereof and\t section 4 authorised the Government
\nto make\t rules for  the imposition  and collection of octroi
\nduty. These  rules were\t to  be\t in  force  until  the\tCity
\nMunicipalities made their own rules. The rules framed by the
\nMunicipality concerned were held to be inoperative. Then the
\nquestion arose whether the rules of the Government continued
\nto be in force. The Court held a
\n\t   “The\t Government rules, however, were to cease to
\n     operate as the notification provided “from the date the
\n     said Municipality\tput into  force their independent by
\n     laws.” It\tis clear  beyond doubt\tthat the  Government
\n     rules  would   cease  to\tapply  from   the  time\t the
\n     respondent-Municipality brought into force its own bye-
\n     laws and  rules under  which it  could validly  impose,
\n     levy and recover the octroi duty. The said notification
\n     did not  intend any  hiatus when neither the Government
\n     rules nor\tthe municipal  rules would  be in the field.
\n     Therefore,- it  is clear  that if\tthe bye-laws made by
\n     the respondent-Municipality  could not  be\t legally  in
\n     force some\t reason or  the other, for instance, for not
\n     having been  validly made,\t the Government\t rules would
\n     continue to  operate as  it cannot\t be  said  that\t the
\n     Municipality had ‘put into force their independent bye-
\n     laws”. The\t Trial Court,  as also\tthe District  Court,
\n     were therefore,  perfectly right  in holding  that\t the
\n     respondent-Municipality could  levy and  collect octroi
\n     duty  from\t the  appellant-firm  under  the  Government
\n     rules. There  was no  question of\tthe Government rules
\n     being revived,  as in the absence of valid rules of the
\n     respondent-Municipality they  continued to operate. The
\n     submission of counsel in this behalf, therefore, cannot
\n     be sustained.”\n<\/p>\n
     In the cases before us we do not have rules made by two
\n(1 ) A.l.R. 1970 S.C. 685
\n370<\/span>
\ndifferent authorities  as in  Mulchand’s case (supra) and no
\nintention on  the part\tof the\tCentral Government  to\tkeep
\nalive  the   exemption\tin   the  event\t of  the  subsequent
\nnotification being  struck down\t is  also  established.\t The
\ndecision of  this court\t in  Koteswar  Vittal  Kamath  v.  K
\nRangappa  Baliga   &  Co.<\/a>(1)   does  not  also\tsupport\t the
\npetitioners. In\t that case  again the question was whether a
\nsubsequent legislation\t which\twas passed  by a legislature
\nwithout competence  would have\tthe effect  of\treviving  an
\nearlier rule  which it\tprofessed to  supersede.  This\tcase
\nagain belongs  to the  category\t of  Mohd.  Shaukat  Hussain
\nKhan’s case (supra). It may also be noticed that in Koteswar
\nVittal Kamath’s\t case (supra) the ruling in the case of Firm
\nA.T.B. Mehtab  Majid &\tCo. (supra)  has been distinguished.
\nThe case  of State  of\t Maharashtra  etc.  v.\tThe  Central
\nProvinces   Manganese\t Ore   Co.    Ltd.(2)\t is    again
\ndistinguishable. In  this case the whole legislative process
\ntermed substitution  was abortive,  because, it did not take
\neffect for  want of  the assent\t to the Governor-General all
\nthe  Court   distinguished  that  case\tfrom  Tiwari’s\tcase
\n(supra). We  may also\tstate  that the\t legal effect  on an
\nearlier law  when the  later law  enacted in  its  place  is
\ndeclared invalid  does not  depend merely  upon the  use  of
\nwords like,  ‘substitution’, or\t ‘supersession’. It  depends
\nupon the  totality of circumstances and the context in which
\nthey are used.\n<\/p>\n
\t     In\t the cases  before us  the competence of the
\nCentral Government  to repeal  or  annul  or  supersede\t the
\nnotification dated  July 15,  1977 is  not questioned- Hence
\nits revival  on the  impugned notifications being held to be
\nvoid would  not arise. The present cases are governed by the
\nrule laid down in Tiwari’s case (supra)
\n      Hence  if the  notification dated July 15, 1977 cannot
\nrevive on  the quashing\t of the\t impugned notifications, the
\nresult would  be disastrous to the petitioners as they would
\nhave to\t pay customs  duty of  40% ad  valorem from March 1,
\n1981 to\t February 28, 1982 and 40% ad valorem plus Rs. 1,000
\nper MT\tfrom March  1, 1982  onwards. In addition to it they
\nwould also be liable to pay auxiliary duty of 30% ad valorem
\nduring the  fiscal year 1983-84 and auxiliary duty of 50% ad
\nvalorem\t during\t  the  fiscal\tyear  1982-83.\t They  would
\nstraigtaway be\tliable to  pay the whole of customs duty and
\nany other  duty levied\tduring the current fiscal year also.
\nSuch a result cannot be allowed to ‘ensue.\n<\/p>\n
(1) [1969] 3 S.C.R. 40.\n<\/p>\n
(2) [1977] I S.C.R. 1002.\n<\/p>\n
371<\/span><\/p>\n
      It is no doubt true that so me of the petitioners have
\nalso questioned\t the validity  of the levy prescribed by the
\nCustoms Tariff\tAct, 1975 itself. But we are of the view the
\nit is  unnecessary to quash it because of the pattern of the
\nlegislative provisions\tlevying customs duty which authorise
\nthe Government\tin appropriate\tcases either  to reduce\t the
\nduty or\t to grant  total exemption  under section  25 of the
\nCustoms\t Act,\t1962  having   regard  to   the\t  prevailing
\ncircumstances and  to very  such concessions  from  time  to
\ntime. The  Governmental practice  in the  matter of  customs
\nduties\thas  made  the\tlaw  imposing  customs\tvirtually  a
\nhovering legislation.  Parliament expects  the Government to
\nreview the situation in each case periodically and to decide
\nwhat duty  should be  levied within  the limit prescribed by
\nthe Customs  Tariff Act,  1975. Hence  the validity  of\t the
\nprovision in  the Customs  Tariff  Act,\t 1975  need  not  be
\nexamined now.  Since it\t is established\t that the Government
\nhas  failed   to  discharge  its  statutory  obligations  in
\naccordance with law while issuing the impugned notifications
\nissued under section 25 of the Custom Act, 1962 on and after
\nMarch 1,  1981, the  Government should\tbe directed  to\t re-
\nexamine the whole issue relating to the extant of  exemption
\nthat should  be granted\t in respect  of imports of newsprint
\nafter taking  into account  all relevant  considerations for
\nthe period  subsequent to March 1,1981- We adopt this course
\nsince we  do not  also wish  that the  Government should  be
\ndeprived of  the legitimate duty which the petitioners would
\nhave to\t pay on\t the imported  newsprint during the relevant
\nperiod.\n<\/p>\n
      In  the result,  in view\tof the\tpeculiar features of
\nthese  cases   and  having  regard  to\tArticle\t 32  of\t the
\nConstitution which  imposes an\tobligation on  this Court to
\nenforce the  fundamental  rights  and  Article\t142  of\t the
\nConstitution which enables this Court in the exercise of its
\njurisdiction to\t make such  order as  is necessary for doing
\ncomplete justice  in any  cause or matter pending before it,
\nwe make the following order is these cases:\n<\/p>\n
      The  Government of  India shall  reconsider within six
\nmonths the  entire  question  of  levy\tof  import  duty  or
\nauxiliary duty\tpayable by  the petitioners  and  others  on
\nnewsprint used\tfor printing  newspapers,  periodicals\tetc.
\nwith effect  from March\t 1, 1981. The petitioners and others
\nwho are\t engaged in  newspaper business shall make available
\nto the\tGovernment all\tinformation necessary  to decide the
\nquestion.\n<\/p>\n
\t     2.\t If on\tsuch reconsideration  the Government
\ndecides that
\n372<\/span>
\nthere should be any modification in the levy of customs duty
\nor
\n A  auxiliary duty  with effect from March 1, 1981, it shall
\ntake necessary steps to implement its decision.\n<\/p>\n
      3.  Until such redetermination of the liability of the
\npetitioners   and  others  is  made,  the  Government  shall
\nrecover only  Rs. 550  per MT  on imported newsprint towards
\ncustoms duty  and auuiliary  duty and  shall not insist upon
\npayment\t of   duty   in\t  accordance   with   the   impunged
\nnotifications. The  concessions extended to medium and small
\nnewspapers. may, however, remain in force.\n<\/p>\n
      4.  If, after  such redetermination,  it is found that
\nany of\tthe petitioners\t is liable to pay any deficit amount
\nby way\tof duty,  such deficit\tamount shall be paid by such
\npetitioner within  four months\tfrom the  date\ton  which  a
\nnotice of  demand  is  served  on  such\t petitioner  by\t the
\nconcerned authority. Any bank guarantee or security given by
\nthe petitioners\t shall be  available for  recovery  of\tsuch
\ndeficit amounts.\n<\/p>\n
      5.  If, after  such redetermination,  it is found that
\nany of the petitioners is entitled to any refund-such refund
\nshall be  made by the Government within four months from the
\ndate of such redetermination.\n<\/p>\n
\t     6.\t A  writ  shall\t issue\tto  the\t respondents
\naccordingly in\tthese cases.  Parties shall,  however,\tbear
\ntheir own costs.\n<\/p>\n
\t The petitions are accordingly allowed.\n<\/p>\n
A.P.J.\n<\/p>\n
\t\t\t\t\t Petitions allowed..\n<\/p>\n
373<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Indian Express Newspapers … vs Union Of India & Ors. Etc. Etc on 6 December, 1984 Equivalent citations: 1986 AIR 515, 1985 SCR (2) 287 Author: E Venkataramiah Bench: Venkataramiah, E.S. (J) PETITIONER: INDIAN EXPRESS NEWSPAPERS (BOMBAY) PRIVATE LTD. & ORS. ETC.E Vs. RESPONDENT: UNION OF INDIA & ORS. ETC. ETC. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-169628","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nIndian Express Newspapers ... vs Union Of India & Ors. Etc. 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