{"id":95288,"date":"1972-10-30T00:00:00","date_gmt":"1972-10-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bennett-coleman-co-ors-vs-union-of-india-ors-on-30-october-1972"},"modified":"2018-03-25T14:39:51","modified_gmt":"2018-03-25T09:09:51","slug":"bennett-coleman-co-ors-vs-union-of-india-ors-on-30-october-1972","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bennett-coleman-co-ors-vs-union-of-india-ors-on-30-october-1972","title":{"rendered":"Bennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972<\/div>\n
Equivalent citations: 1973 AIR 106, \t\t 1973 SCR (2) 757<\/div>\n
Author: S Sikri<\/div>\n
Bench: Sikri, S.M. (Cj), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah<\/div>\n
           PETITIONER:\nBENNETT COLEMAN & CO. & ORS.\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ORS.\n\nDATE OF JUDGMENT30\/10\/1972\n\nBENCH:\nSIKRI, S.M. (CJ)\nBENCH:\nSIKRI, S.M. (CJ)\nRAY, A.N.\nREDDY, P. JAGANMOHAN\nMATHEW, KUTTYIL KURIEN\nBEG, M. HAMEEDULLAH\n\nCITATION:\n 1973 AIR  106\t\t  1973 SCR  (2) 757\n 1972 SCC  (2) 788\n CITATOR INFO :\n RF\t    1973 SC1461\t (1787)\n R\t    1974 SC 366\t (98)\n F\t    1974 SC1232\t (10)\n R\t    1974 SC1300\t (24)\n RF\t    1974 SC1389\t (174)\n F\t    1975 SC  32\t (32)\n RF\t    1976 SC1207\t (86,89,91,177,179,445,541)\n R\t    1978 SC 597\t (41,68,77,131,176,195)\n R\t    1978 SC 727\t (34)\n RF\t    1979 SC  25\t (35)\n RF\t    1980 SC 898\t (35)\n R\t    1981 SC1368\t (7)\n RF\t    1983 SC 937\t (12)\n RF\t    1986 SC 515\t (22,33,35,64,65,89,102)\n RF\t    1986 SC 833\t (45)\n R\t    1986 SC 872\t (70,75,77)\n\n\nACT:\nConstitution of India 1950, Arts. 14 & 19 (1) (a)--Newsprint\npolicy\tfor 1972-73 whether violates Articles 19(1) (a)\t and\n14  -Validity  of Remarks V, VII(a), VII(c), VIll and  X  of\nPolicy--Competency  of\tshareholders  of  company  to\tfile\npetitions under Art.32--Emergency proclaimed under Art.\t 358\nof  Constitution--Application in respect of  enforcement  of\nfundamental rights whether barred.\n\n\n\nHEADNOTE:\nThe  Import  Control  Order  1955  passed  by  the   Central\nGovernment  under  ss. 3 and 4A of the Imports\tand  Exports\nControl\t Act  1947  laid  restrictions\ton  the\t import\t  of\nnewsprint.   As\t an essential commodity newsprint  was\talso\nsubject\t to control under s.3 of the  Essential\t Commodities\nAct 1955.  The Newsprint Control Order 1962 was passed under\ns.  3  of the Essential Commodities Act.   Sub-clause  3  of\nclause\t3  of  the 1962 Order states  that  no\tconsumer  of\nnewsprint  shall  in  any licensing period  consume  or\t use\nnewsprint in excess of quantity authorised by the Controller\nfrom time to time.  Sub-clause 3A of clause 3 states that no\nconsumer  of newsprint other than a publisher of text  books\nof  general interest shall use any kind of paper other\tthan\nnewsprint  except  with\t the permission in  writing  of\t the\nController.   Sub-clause (5) of Clause 3 of the\t 1962  Order\nstates\tthat in issuing an authorisation under\tthis  clause\nthe Controller shall have regard to the principles laid down\nin  the\t Import\t Control Policy with  respect  to  newsprint\nannounced by the Central Government from time to time.\t The\nnewsprint Policy for 1972-73 was challenged in this Court in\npetitions under Art. 32 of the Constitution.  The  questions\nthat   fell  for  consideration\t were  :  (i)  whether\t the\npetitioners being companies could invoke fundamental rights;\n(ii)  whether Art. 358 of the Constitution was a bar to\t any\nchallenge  by the petitioners on violations  of\t fundamental\nrights;\t (iii) whether the restriction on  newsprint  import\nunder the 1955 Order was violative of Art. 19(1) (a) of\t the\nConstitution; (iv) whether the newsprint Policy fell  within\nclause 5(1) of the Import, Control Order 1955 and was valid;\n(v)  whether  clauses  3  and 3A of clause  3  of  the\t1962\nNewsprint Order were violative of Arts. 19,(1) (a) and 14 of\nthe  Constitution; (vi) whether Remarks V,  VII(a),  VII(c),\nVIII,  and  X  of  the Newsprint  Policy  for  1972-73\twere\nviolative  of  Arts. 19(1) (a) and 14  of  the\tConstitution\nbecause of the following objectionable features : (a) No new\npaper or new edition could be started by a common  ownership\nunit (i.e., a newspaper establishment or concern owning\t two\nor  more  news interest newspapers including  at  least\t one\ndaily)\teven within the authorised quota of  newsprint;\t (b)\nthere was a limitation on the maximum number of pages to 10,\nno  adjustment being permitted between circulation  and\t the\npages so as to increase the pages; (c) no interchangeability\nwas  permitted between different papers of common  ownership\nunit or different editions of the same paper; (d)  allowance\nof 20 per cent increase in page level up to a, maximum of 10\nhad been given to newspapers with less than 10 pages; (e)  a\nbig  newspaper was prohibited and prevented from  increasing\nthe number of pages, page areas, and periodicity by reducing\ncirculation   to  meet\tits  requirement  even\twithin\t its\nadmissible   quota;   (f)  there   was\t discrimination\t  in\nentitlement between\n758\nnewspapers with an average of more than 10 pages as compared\nwith newspapers of 10 or less than 10 pages.\nAllowing the petitions,\nHELD: Per Majority (Sikri.  C.J., Rayand       Jaganmohan\nReddy, JJ.) (1)The   Bank  Nationalization   case   has\nestablished   the  view\t that  the  fundamental\t rights\t  of\nshareholders as citizens are not lost when they associate to\nform a company When their fundamental rights as shareholders\nare  impaired by State action their rights  as\tshareholders\nare protected.\tThe reason is that the shareholders'  rights\nare  equally and necessarily affected if the rights  of\t the\ncompany\t are  affected.\t  The rights  of  shareholders\twith\nregard to Article 19(1) (a) are projected and manifested  by\nthe  newspapers\t owned and controlled  by  the\tshareholders\nthrough the medium of the Corporation. [773C-D]\nIn  the\t present case the individual rights  of\t freedom  of\nspeech and expression of editors,Directors and\tShareholders\nare  all  expressed through their newspapers  through  which\nthey speak.  The locus standi of the shareholder petitioners\nis  beyond challenge after the ruling of this Court  in\t the\nBank  Nationalisation case., The presence of the company  is\non the same ruling not a bar to the grant of relief.  [773D-\nF]\n(ii)The\t present- petitions which were originally filed\t to\nchallenge  the Newsprint Policy for 1971-72 were amended  to\nchallenge  the 1972-73 policy.\tThe impeached policy  was  a\ncontinuation of the old policy.\t Article 358 does not  apply\nto  executive action taken during the emergency if the\tsame\nis  a  continuation  of the prior  executive  action  or  an\nemanation  of the previous law which prior executive  action\nor  previous law would otherwise be violative of Art. 19  or\nbe otherwise unconstitutional. [774 F, G, H]\nExecutive  action which is unconstitutional is\tnot  unusual\nduring\t the   proclamation  of\t  emergency.\tDuring\t the\nproclamation  Art.  19\tis  suspended.\t But  it  would\t not\nauthorise the taking of detrimental executive action  during\nthe  emergency affecting the fundamental rights in  Art.  19\nwithout\t any legislative authority or in purported  exercise\nof  power  conferred  by any  pre-emergency  law  which\t was\ninvalid when enacted. [775A-B]\n(iii)The  power of the Government to  import  newsprint\ncannot\tbe denied.  The power of the Government\t to  control\nthe  distribution  of newsprint cannot\tequally\t be  denied.\nThis Court cannot adjudicate on such policy measures  unless\nthe  policy  is alleged to. be mala fide.  The\tCourt  could\nalso  not  go  into  the  dispute  as  to  the\tquantity  of\nindigenous newsprint available for newspapers. [776D; 776E]\n(iv)The\t records with regard to the making and\tpublication\nof the news print policy for 1972-73 showed that the  policy\nwas  published under the authority of the Cabinet  decision.\nThe policy was therefore validly brought into existence.\n(v) Although Art. 19(1) (a) does not mention the freedom  of\nthe Press, it is the settled view of this Court that freedom\nof  speech and expression includes freedom of the Press\t and\ncirculation.   The Press has the right of  free\t propagation\nand  free  circulation\twithout any  previous  restraint  on\npublication.   If  a law were to single out  the  press\t for\nlaying\tdown prohibitive burdens on it that  would  restrict\nthe  circulation,  penalise  its freedom  of  choice  as  to\npersonnel, prevent newspapers from being started and  compel\nthe  press to Government aid, this would violate Art.  19(1)\n(a)  and would fall outside the Protection afforded by\tArt.\n19(2).\n[777B-D]\n759\nThe concept of regulation of fundamental rights borrowed and\nextracted  from American decisions cannot be accepted.\t The\nAmerican  First\t Amendment contains no exceptions  like\t our\nArt. 19(2) of the Constitution.\t This Court has\t established\nfreedom\t of  the press to speak and express.   That  freedom\ncannot be abridged and taken away by the manner the impugned\npolicy has done. [783B; 784C]\n(vi)A  newspaper control policy is ultra vires\tthe  Import\nControl Act and the Import control Order.  The machinery  of\nImport\tControl\t cannot\t be  utilised  to  control  or\tcurb\ncirculation  or\t growth or freedom of newspapers  in  India.\nThe  pith  and substance doctrine is  used  in\tascertaining\nwhether\t the  Act falls under one Entry\t while\tincidentally\nencroaching  upon another Entry.  Such a question  does\t not\narise  here.,  The Newsprint Control Policy is found  to  be\nnewspaper  control order in the guise of framing  an  Import\nControl Policy for newsprint. [780H; 781A-B]\n(vii)This  Court in the Bank Nationalisation case  laid\ndown two tests.\t First it is not the object of the authority\nmaking\tthe law impairing the right of the citizen  nor\t the\nform  of action that determines the invasion of\t the  right.\nSecondly,  it is the effect of the law and the\taction\tupon\nthe  right which attracts the jurisdiction of the  court  to\ngrant  relief.\t The direct operation of the  Act  upon\t the\nrights forms the real test. [781C-D]\nAn  examination\t of the provisions of the  newsprint  policy\nindicates  how the petitioner's fundamental rights had\tbeen\ninfringed  by  the restrictions on page\t limit,\t prohibition\nagainst\t new  newspapers and new editions.  The\t effect\t and\nconsequence  of the impugned policy upon the  newspapers  is\ndirectly   controlling\t the  growth  and   circulation\t  of\nnewspapers.   The  direct  effect is  the  restriction\tupon\ncirculation of newspapers., The direct effect is upon growth\nof  newspapers\tthrough pages.\tThe direct  effect  is\tthat\nnewspapers are deprived of their area of advertisement.\t The\ndirect\teffect is that they are exposed to  financial  loss.\nThe  direct effect is that freedom of speech and  expression\nis infringed. [782B-C]\n(viii)It is indisputable that by freedom of the press is\nmeant  the  right  of all citizens  to\tspeak,\tpublish\t and\nexpress their views.  The freedom of the press embodies\t the\nright  of the people to read.  The freedom of the  press  is\nnot  antithetical  to the right of the people to  speak\t and\nexpress.\n[782G]\n(ix)In\tthe  present case fixation of page limit  will\tnot\nonly deprive the petitioners of their economic vitality\t but\nalso  restrict\tthe freedom of expression by reason  of\t the\ncompulsive  reduction of page level entailing  reduction  of\ncirculation and demanding the area of coverage for news\t and\nviews. [790D-E]\nIf  as\ta result of reduction in pages the  newspapers\twill\nhave to depend on advertisements as the main source of their\nincome, they will be denied dissemination of news and views.\nThat  will also deprive them of their freedom of speech\t and\nexpression.  On the other hand if as a result of restriction\non  page  limit\t the  newspapers  will\thave  to   sacrifice\nadvertisements\tand  thus  weaken  the\tlimit  of  financial\nstrength,  the\tOrganisation  may  crumble.,  The  loss\t  on\nadvertisements may not only entail the closing down but also\naffect\tthe circulation and thereby infringe on\t freedom  of\nspeech and expression. [790F-G]\n(x)The impeached policy violates Art. 14 because it treats\nnewspapers  which  are not equal equally  in  assessing\t the\nneeds and requirements of newsprint.  The 7 newspapers which\nwere  operating\t above\t10  page  level\t are  placed  at   a\ndisadvantage  by the fixation of 10 page limit and  entitle-\nment  to  quota\t on that basis.\t There\tis  no\tintelligible\ndifferentia.\n[791H; 792A-B]\n760\nThe  basic entitlement in Remark V to quota  for  newspapers\noperating  above  10 page level\t violates  Article  19(1)(a)\nbecause the quota is hedged in by direction not increase the\npage number above 10.  The reduction of page limit to 10 for\nthe aforesaid reasons violates Article 19(1)(a) and  Article\n14 of the Constitution. [792C]\n(xi)Under Remark VII(C) those-newspapers within the ceiling\nof 10 pages get 20 per cent increase in the number of pages.\nThey  require  circulation more than the  number  of  pages.\nThey are denied circulation as a result of the policy.,\t The\nbig  English dailies which need to increase their pages\t are\nnot  permitted\tto do so.  Other dailies which do  not\tneed\nincrease in pages are permitted quota. for increase but they\nare denied the right of circulation.  This is not  newsprint\ncontrol but newspaper control. [792F-G]\n(xii)Discrimination is apparent from Remark VII in  the\nnewsprint  Policy for 1972-73 by which newspapers with\tless\nthan  1,00,000 circulation have been given 10%\tincrease  in\ncirculation whereas those with more than 1,00,000 circulation\nhave been given only 3% increase in circulation. [795C-D]\n(xiii)\t  The  first part of Remark VIII prohibits  increase\nin pages by reducing\t circulation.\t  in\tthe\tpast\nadjustability  between pages and circulation was  permitted.\nThe  individual requirements of different dailies render  it\neminently desirable in some cases to increase the number  of\npages  than circulation.  The denial of this flexibility  or\nadjustment is rightly said to hamper the quality, range\t and\nstandard  of  the dailies and to affect the freedom  of\t the\npress.\tBig dailies are treated to be equal with  newspapers\nwho are not equal to them thus violating Art. 14. [793E-F]\n(xiv)\t  The  second prohibition in Remark  VIII  prevented\ncommon\townership  units  from adjusting  between  them\t the\nnewsprint quota alloted to each of them.  The prohibition is\nto  use the newsprint quota of one newspaper belonging to  a\ncommon\townership  unit for another newspaper  belonging  to\nthat unit.  Newsprint is allotted to each paper.  The  news-\npaper is considered to be the recipient.  A single newspaper\nwill suffer if common ownership units are allowed to  adjust\nquota within their group. [794 B; & D]\n(xv) Under Remark X a common ownership unit could bring\t out\na newspaper or start a new edition of an existing paper even\nfrom  their  allocated\tquota. it is an\t abridgment  of\t the\nfreedom\t of  expression to prevent a common  ownership\tunit\nfrom  starting a new edition or a new newspaper.   A  common\nownership unit should be free to start a new edition out  of\ntheir  allotted\t quota and it would be logical to  say\tthat\nsuch  a#  unit can use the allotted quota for  changing\t the\npage structure and circulation of different editions of\t the\nsame  paper.  Newspapers however cannot be permitted to\t use\nallotted  quota\t for starting a new  newspaper.\t  Newspapers\nwill  have  to make necessary application for  allotment  of\nquota  in that behalf.\tIt will be open to  the\t appropriate\nauthorities to deal with the application in accordance\twith\nlaw. [794G-H]\n(xvi)\t  The  liberty\tof the press remains an Ark  of\t the\nCovenant.   The\t newspapers give the people the\t freedom  to\nfind out which ideas are correct.  Therefore the freedom  of\nthe press is to be enriched by removing the restrictions  on\npage  limit  and  allowing  them to  have  new\teditions  of\nnewspapers. [796A-C]\n(xvii)\t  The  Press  is  not exposed  to  any\tmischief  of\nmonopolistic  combination.   The newsprint policy is  not  a\nmeasure to combat monopolies.\n761\nThe newsprint policy should allow the newspapers that amount\nof freedom of discussion and information which is needed  or\nwill  appropriately  enable the members of  the\t society  to\npreserve their political expression of comment not only upon\npublic\taffairs\t but also upon the vast range of  views\t and\nmatters needed for free society. [797D-F]\n(xix)\t  Clause  3(3A) of the 1962 Order provides  that  no\nconsumer  of newsprint other than a publisher of text  books\nof  general interest shall use any kind of page\t other\tthan\nnewsprint except with the permission of the Controller.\t  It\nwas therefore wrong to say that it was open to newspapers to\nmake unrestricted use of any form of paper so long as  news-\npapers did not apply for newsprint. [798F]\n(xx) In\t the  result the provisions in\tremarks\t V,  VII(a),\nVII(C) and VIII of the Policy being violative of Arts. 14  &\n19  (1)\t (a)  of the Constitution must\tbe  struck  down  as\nunconstitutional.   The\t prohibition  in  Remark  X  against\ncommon\t ownership  unit  from\tstarting  a  new   newspaper\nperiodical    or   a   new   edition   must   be    declared\nunconstitutional and struck down as violative of Art. 19 (1)\n(a) of the Constitution. [799B-D]\n[In the circumstances of the case the Court did not find  it\nnecessary to express any opinion on Clause 3(3) and'  Clause\n3(3A) of the Control Order]\nState  Trading Corporation of India Ltd. v.  The  Commercial\nTax  Officer,  Visakhapatanam,<\/a>\t[1964]\t4  S.C.R.  99,\tTata\nEngineering  &\tLocomotive Co. v. State of Bihar,<\/a>  [1964]  6\nS.C.R., 885, Chiranjit Lal Choudhuri v. The Union of India &\nOrs.<\/a> [1950] S.C.R. 869, Express Newspapers (Private) Ltd.  &\nAnr.  v. The Union of India & Ors.<\/a> [1959] S.C.R.  12,  Sakai\nPapers\t(P)  Ltd.  & Ors. v. The Union of  India,<\/a>  [1962]  3\nS.C.R. 842, Romesh Thappar v. State of Madras,<\/a> [1950] S.C.R.\n594,  Brij Bhushan V. State of Delhi,<\/a> [1950] S.C.R. 605,  R.\nC.  Cooper v. Union of India,<\/a> [1970] 3 S.C.R. 530,  District\nCollector  of  Hyderabad & Ors. v. M\/s Ibrahim\t&  Co.<\/a>\tetc.\n[1970]\t3  S.C.R.  498, State of Madhya Pradesh\t &  Anr.  v.\nThakur Bharat Singh,<\/a> [1967] 2 S.C.R. 454, Hamdard  Dawakhana\n(Wakf)\tLal  Kuan  Delhi & Anr. v. Union of  India  &  Ors.,<\/a>\n[1960]\t2 S.C.R. 1671, Red Lion Broadcasting Co. v.  Federal\nCommunications\tCom. [1969] 393 US 367=23 L.Ed\t371,  United\nStates v. O'Brian, [1968] 391 US 367=23L.Ed. 2d 371,  United\nStates\tv. O'Brien, [1968] 391, U.S. 367=20 L.Ed.  2d.\t672,\nAbdul Azict Aminudinv. State of Maharashtra, [1964] 1 S.C.R.\n830, Dwarkadas Shrinivas v.The Sholapur & Weaving Co.  Ltd.,\n[1954] S.C.R. 674,Commonwealth\t   of  Australia v. Bank  of\nNew  South Wales, [1950] A.C.235 and Citizen Publishing\t Co.\nv.  United States, [1969] 394 U.S. 131=22 L. Ed. 2  d.\t148,\nreferred to.\nPer  Beg  J. (concurring) The ambit of the conditions  in  a\nlicence\t cannot\t under\tthe provisions of  the\tImports\t and\nExports Control Act, after newsprint has been imported under\na licence, extend to laying down how it is to be utilized by\na newspaper concern for its own genuine needs and businesses\nbecause\t this would ?.mount to control of supply of news  by\nmeans  of newsprint instead of only regulating\tits  import.\n[833C-D]\nThe  relevant enactments and orders seem to  authorise\tonly\nthe grant of licences for particular quotas to those who run\nnewspapers  on the strength of their needs, assessed on\t the\nbasis of their past performances and future requirements and\nother  relevant\t data, but not to warrant an  imposition  of\nfurther\t conditions  to be observed by them while  they\t are\ngenuinely  using the newsprint themselves in the  course  of\ncarrying  on  a legitimate and\tpermissible  occupation\t and\nbusiness.   The impugned restrictive conditions thus  appear\nto  go\tbeyond, the scope of the Essential  Commodities\t Act\n1955  as well as the imports & Exports (Control) Act,  1947.\nNor could any legal\n762\nauthority  be found for them in the provisions of the  Press\nBooks  Act 1867, Registration of Newspapers (Central  Rules)\n1956,  and Press Council Act, 1965, to which  reference\t was\nmade. [833D-G]\nTherefore  the\targument  put  forward\ton  behalf  of\t the\npetitioners that after the allocation of quotas of newsprint\nto  each set of petitioners, on legally\t relevant  material,\nthe  further restrictions sought to be imposed, by means  of\nthe notified newsprint control policy, on the actual mode of\nuser of newsprint for publication of information or views by\nthe  licensees,\t similar to those which were  held  by\tthis\nCourt in Sakai Papers case to be invalid, are not covered by\nany law in existence, had to be accepted.  Hence it was\t not\neven  necessary\t to consider whether  they  were  reasonable\nrestrictions warranted by either Art. 19 (2) or Art. 19\t (6)\nof the Constitution.  They must first have the authority  of\nsome law to support them before the question of\t considering\nwhether they could be reasonable restrictions on fundamental\nrights of the petitioner could arise. [833H-834B]\nPer Mathew J. (dissenting) (1) Art. 19 (1) (a) guarantees to\nthe citizens, the fundamental right of the freedom of speech\nand  Art,  19(2) enumerates the type of\t restrictions  which\nmight be imposed by law.  It does not follow from this\tthat\nfreedom\t of expression is not subject to  regulations  which\nmay not amount to, abridgment.\tIt is a total  misconception\nto  say\t that  speech  cannot be  regulated  or\t that  every\nregulation of speech would be anabridgment of the freedom of\nspeech.\t  No  freedom  however absolute, can  be  free\tfrom\nregulation.   Though the right under Art. 30(1) is in  terms\nabsolute, this Court said in In Re the Kerala Education Bill\n1957,  ([1959]\tS.C.R. 995), that the right  is\t subject  to\nreasonable regulation. [803F-G]\n(ii) If,  on  account of scarcity of newsprint,\t it  is\t not\npossible,  on  an equitable, distribution to  allot  to\t the\npetitioners,  newsprint to the extent necessary to  maintain\nthe  present  circulation of the newspapers  or\t their\tpage\nlevel  has to be reduced, it cannot be contended that  there\nhas  been  abridgment  of freedom  of  speech.\t Surely\t the\nreduction  in  the page level or circulation is\t the  direct\nresult of the diminished supply of newsprint.  Yet it cannot\nbe said that there is an abridgment of the freedom of speech\nof the petitioners.  There might be an abridgment of speech,\nbut not an abridgment of the freedom of speech. [807C-D]\n(iii)\t  The pith and substance test, although not strictly\nappropriate, might serve a useful purpose in the process  of\ndeciding whether the provisions in question which work\tsome\ninterference  with  the freedom of  speech  are\t essentially\nregulatory in character. [807C-D]\n(iv) The  crucial  question today, as regards  Art.  14,  is\nwhether the command implicit in it constitutes merely a\t bar\non  the\t creation  of  inequalities  existing  without\t any\ncontribution thereto by State action.  It has been said that\njustice\t is the effort of man to mitigate the inequality  of\nman.   The  whole drive of the directive principles  of\t the\nConstitution  is  toward this goal and it is  in  consonance\nwith  the new concept of equality.  The only norm which\t the\nConstitution  furnishes\t for distribution  of  the  material\nresources of the community is the elastic norm of the common\ngood [see Art. 39(b)].\tIt cannot be said that the principle\nadopted\t for  the distribution of newsprint is not  for\t the\ncommon good. [816C-F]\nThat apart one of the objects of the Newsprint policy was to\nremedy\tthe inequality created by the previous policies\t and\nto  enable  the dailies having less than 10 pages  attain  a\nposition of equality with those operating on a page level of\n10 or more.. The allowance of 20 per cent\n763\nincrease for growth in the page level provided in Remark VII\nis  based  on a classification and  that  classification  is\ngrounded  on an intelligible differentia having a  nexus  to\nthe object sought to be achieved. [816G]\n(v)  If\t the  entitlement  of a\t consumer  of  newsprint  is\ncalculated on the basis of page-level and circulation of the\nnewspaper  it  would be an integral part of  any  system  of\nrationing  to tell the consumer that he should maintain\t the\npage  level and circulation of the paper.  The provision  in\nRemark VIII does not say that the proprietor or publisher of\na newspaper should reduce its circulation.  The provision in\neffect only tells the proprietor\/ publisher of the newspaper\n\"maintain  the circulation at the present level or  increase\nit  if you like by reducing the page level.\" This would\t not\namount\tto an abridgment of the freedom of speech. [817 D  &\nF]\n(vi) Under  the\t theory\t of  the  freedom  of  speech  which\nrecognises  not only the right of the citizens to speak\t but\nalso  the right of the community to hear, a policy  for\t the\ndistribution of newsprint for maintenance of circulation  at\nits  highest possible level as it furthers the right of\t the\ncommunity  to  hear,  will  only  advance  and\tenrich\tthat\nfreedom. [819D]\n(vii)\t  It is difficult to understand how the fixation  of\na  maximum  page  level of 10 for calculation  of  quota  of\nnewsprint  would offend the fundamental right of freedom  of\nspeech\tof the petitioners.  The freedom of speech does\t not\nmean  a\t right\tto obtain or use an  unlimited\tquantity  of\nnewsprint., Art. 19(1) (a) is not the \"guardian of unlimited\ntalkativeness.\" [814F-G]\n(viii)\t  It  is  settled by the decision of this  Court  in\nHamdard\t Dawakhana  ([1960] 2 S.C.R.  671)  that  commercial\nadvertisement does not come within the ambit of the  freedom\nof  speech  guaranteed\tby Art.\t 19(1)(a).   Curtailment  of\nspeech\toccasioned  by\trationing of newsprint\tdue  to\t its\nscarcity  can only affect freedom of speech  indirectly\t and\nconsequently there would be no abridgment of it. [815B-C]\n(ix) The  Government  may  under  cls.\t3  of  the   Imports\n(control)  Order,  1955\t totally  prohibit  the\t import\t  of\nnewsprint  and\tthus disable any person from carrying  on  a\nbusiness  in newsprint, if it is in the general interest  of\nthe public not to extend any foreign exchange on that score.\nIf the affirmative obligation to expend foreign exchange and\npermit\tthe  import  of newsprint stems\t from  need  of\t the\ncommunity  for\tinformation  and  the  fundamental  duty  of\nGovernment  to\teducate the people as also  to\tsatisfy\t the\nindividual  need  for  self expression, it is  not  for\t the\nproprietor  of a newspaper alone to say that he will  reduce\nthe  circulation  of  the newspaper and\t increase  its\tpage\nlevel,\tas the community has an interest in  maintaining  or\nincreasing circulation of newspapers.. The claim to  enlarge\nthe  volume of speech at the expense of circulation  is\t not\nfor  exercising\t the freedom of speech\tguaranteed  by\tArt.\n19(1) (a) but for commercial advertisement for revenue which\nwill fall within the ambit of that subarticle. [820B-E]\n(x)  The  printer or publisher of each newspaper owned by  a\ncommon\townership unit is a separate consumer and it  is  to\nthat  consumer that the quota is allotted.  The\t application\nfor  quota made by the common ownership unit  specifies\t the\nentitlement  of\t each newspaper owned by it,  and  quota  is\ngranted to each newspaper on that basis.  If it were  opened\nto a common ownership unit to use the quota allotted for one\nnewspaper  owned  by  it for another  newspaper,  or  for  a\ndifferent   edition  of\t the-same  newspaper,\tthat   would\nfrustrate  the\twhole scheme of rationing.   Prohibition  of\ninterchangeability  has nothing to do with Art.\t 19(1)\t(a).\n[822C-D]\n764\n(xi) That  there is a valid classification between a  person\nowning\tno newspaper and a common ownership unit owning\t two\nor more newspapers cannot be denied.  Any person desiring to\nexpress\t himself  by  the medium of a  newspaper  cannot  be\ndenied\tan opportunity for the same.  The  right  guaranteed\nunder Art. 19(1)(a) has an essentially individual aspect.  A\ncommon ownership unit has already been given the opportunity\nto express itself by the media of two or more newspapers. if\na  common  ownership  unit  were  to  go  on  acquiring\t  or\nsponsoring new newspapers and if the claim for quota for all\nthe   newspapers   is  admitted,  that\t would\t result\t  in\nconcentration of newspaper ownership and will accelerate the\ntendency towards monopoly in the newspaper industry.   Since\nthe  quantity  of newsprint available  for  distribution  is\nlimited, any system of rationing must place some  limitation\nupon  the  right  of a person  to  express  himself  through\nnewspapers. [822H; 823A-D]\n(xii)\t  The  contention that the newsprint Policy was\t not\nbinding\t since\tit  had no statutory backing  could  not  be\naccepted.   The\t newsprint Policy was issued  by  the  Chief\nController of Imports & Exports and the Additional Secretary\nto  Government, had authenticated it.  The newsprint  Policy\nwas placed before both the Houses of Parliament.  Even if it\nwas  administrative in character it was capable of  founding\nrights and duties. [823F; 824B]\n(xiii)\t  The  contention  that\t after\tnewsprint  has\tbeen\nimported,  there  was  no  longer  any\tpower  left  in\t the\nGovernment or in the Chief Controller of Imports and Exports\nto  direct the manner in which it should be utilized,  could\nnot  be accepted.  Even if it be assumed that Government  or\nthe  Chief  Controller of Imports and Exports has  no  power\nunder  cl. 5(1)(i) of the Imports (Control) Order  1955,  to\nissue  directions  as  regards the mode\t of  utilization  of\nnewsprint after its import, it is clear that the  Government\nhas  power  by\tvirtue\tof the provisions of  s.  3  of\t the\nEssential Commodities Act, 1955, to pass an Order as regards\nthe utilization of newsprint, as newsprint is an  \"essential\ncommodity\" under s. 2(vii) of that Act. [824F; 825C-D]\n(xiv)\t  Clauses  3(3)\t and 3(3A) of that  newsprint  order\nwere not violative of Art. 14 of the Constitution. [826F]\n(xv) It was not necessary to express any opinion as  regards\nthe maintainability of the writ petitions on the ground that\nconsumers of newsprint in question were not citizens. [826G]\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION Writ Petitions Nos. 334 of  1971, 175,
\n186 and 264 of 1972.\n<\/p>\n
Petitions under Article 32 of the Constitution of India\t for
\nthe enforcement of fundamental rights.\n<\/p>\n
N.   A. Palkhiwala, S. J. Sorabjee, M. O. Chenai, S. Swarup,
\nRavinder Narain, O. C. Mathur and J. B. Dadachanji, for\t the
\npetitioners (in W.P. No. 334 of 1971.)
\nC.   K.\t Daphtary,  M.\tC.  Bhandare,  Liela  Seth,  O.\t  P.
\nKhaitanand N.  C. Shah, for the Petitioner (in W.P. No.\t 175
\nof 1972).\n<\/p>\n
S.   J.\t Sorabjee,  Ramanathan, J. B.  Dadachanji,  Ravinder
\nNarain\t  and O. C. Mathur, for the Petitioners (in W.P. No.
\n186 of 1972).\n<\/p>\n
765<\/span><\/p>\n
M.   K. Nambyar, K. K. Venugopal, J. B. Dadachanji, Ravinder
\nNarain\tand O. C. Mathur, for the petitioners (in  W.P.\t No.
\n264 of 1972).\n<\/p>\n
F.   S.\t Nariman, Additional Solicitor-General of India,  G.
\nDas  and  B. D. Sharma, for the respondents (in\t W.Ps.\tNos.
\n334, 175 and 186 of 1972).\n<\/p>\n
J.   B.\t Dadachanji, O. C. Mathur and Ravinder\tNarain,\t for
\nthe Interveners Nos.  1 and 2.\n<\/p>\n
O. P. Khaitan, for Intervener No. 3.\n<\/p>\n
The majority judgment of Sikri, C.J. and Ray and  Jaganmohan
\nReddy,\tJJ.  was delivered by Ray, J. Beg,  J.\tdelivered  a
\nseparate   concurring  opinion.\t  Mathew,  J.  delivered   a
\nseparate dissenting opinion.\n<\/p>\n
RAY,  J.  These petitions challenge the\t Import\t Policy\t for
\nNewsprint for the year April 1972 to March 1973.  The  News-
\nprint Policy is impeached as an infringement of\t fundamental
\nrights to freedom of speech and expression in Article 19 (1)\n<\/p>\n
(a) and right to equality in Article 14 of the Constitution.
\nSome  provisions  of the Newsprint Control  Order  1962\t are
\nchallenged  as violative of Article 19(1)(a) and Article  14
\nof the Constitution.\n<\/p>\n
The  import  of newsprint is dealt with\t by  Import  Control
\nOrder,\t1955  (referred to as the 1955 Import  Order).\t The
\n1955 Import Order is made in exercise of powers conferred by
\nsections  3 and 4A of the Imports and Exports  Control\tAct,
\n1947  (referred to as the 1947 Act).  Section 3 of the\t1947
\nAct, speaks of powers of the Central Government to prohibit,
\nrestrict or otherwise control imports and exports.   Section
\n4A of the 1947 Act contemplates issue or renewal of licences
\nunder the 1947 Act for imports and exports.  Item 44 in Part
\nV  of  Schedule\t I  of the  1955  Import  Order\t relates  to
\nnewsprint.   Newsprint is described as white printing  paper
\n(including water lined newsprint which contained  mechanical
\nwood  pulp  amounting  to not less than\t 70%  of  the  fibre
\ncontent).   The import of newsprint is restricted under\t the
\n1955 Import Order.  This restriction of newsprint import  is
\nalso  challenged because it infringes Article 19(1)(a).\t  It
\nis  said that the restriction of import is not a  reasonable
\nrestriction within the ambit of Article 19(2).
\nThe  Newsprint Control Order 1962 (referred to as  the\t1962
\nNewsprint Order) is made in exercise of powers conferred  by
\nsection of the Essential Commodities Act. 1955 (referred  to
\nas the 1955 Act).  Section 3 of the 1955 Act enacts that  if
\nthe Central Government is of opinion that it is necessary or
\nexpedient  so to do for maintaining or increasing supply  of
\nessential  commodities\tor  for\t securing  their   equitable
\ndistribution and availability
\n766<\/span>
\nat fair prices, it may, by order, provide for regulating  or
\nprohibiting  production, supply and distribution  and  trade
\nand  commerce  therein.\t Section 2 of the 1955\tAct  defines
\n“essential  commodity”\t Paper\tincluding  newsprint,  paper
\nboard  and straw board is defined in section 2 (a) (vii)  of
\nthe 1955 Act to be an essential commodity.\n<\/p>\n
The  1962 Newsprint Order in clause 3 mentions\trestrictions
\non  acquisition,  sale and consumption of  newsprint.\tSub-
\nclause 3 of clause 3 of the 1962 Newsprint Order states that
\nno  consumer  of newsprint shall, in any  licensing  period,
\nconsume\t  or  use  newsprint  in  excess  of  the   quantity
\nauthorised by the Controller from time to time.\t  Sub-clause
\n3A  of clause 3 of the 1962 Newsprint Order states  that  no
\nconsumer of newsprint, other than a publisher of text  books
\nor  books of general interest, shall use any kind  of  paper
\nother than newsprint except with the permission, in writing,
\nof  the\t Controller.  Sub-clause 5 of clause 3 of  the\t1962
\nNewsprint  Order  states that in  issuing  an  authorisation
\nunder  this clause, the Controller shall have regard to\t the
\nprinciples  laid  down\tin the Import  Control\tPolicy\twith
\nrespect\t of  newsprint announced by the\t Central  Government
\nfrom, time to time.  Sub-clauses 3 and 3A of clause 3 of the
\n1962  Newsprint Order are challenged in these  petitions  on
\nthe   ground  that  these  clauses  affect  the\t volume\t  of
\ncirculation, the size and growth of a newspaper and  thereby
\ndirectly  infringe Article 19 (1 ) (a) of the  Constitution.
\nThe restrictions mentioned in these sub-clauses of clause  3
\nof  the\t 1962  Newsprint  Order are  also  said\t to  be\t not
\nreasonable  restrictions within the ambit of Article 19\t (2)
\nof the Constitution.\n<\/p>\n
Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order
\nare further impeached on the ground that they offend Article
\n14  of\tthe Constitution.  Sub-clause 3A is said  to  confer
\nunfettered and unregulated power and uncontrolled discretion
\nto   the   Controller\tin  the\t matter\t  of   granting\t  of
\nauthorisation.\tIt is said that there are no provisions\t for
\nredress\t of grievances by way of appeal or revision  of\t the
\nController’s  decision in the matter of grant or renewal  of
\nauthorisation.\tThe restrictions are said to be not  reason-
\nable  or justified in the interest of general  public.\t The
\ndistinction  between publishers of text-books and  books  of
\ngeneral\t interest  on the one hand and\tother  consumers  of
\nnewsprint  on  the  other in sub-clause 3A  is\tsaid  to  be
\ndiscriminatory\tand without any rational basis.\t Again,\t the
\ndisability imposed by sub-clause 3A on newspapers preventing
\nthem from using printing and writing paper while  permitting
\nall  other  consumers  to do so, is said  to  be  irrational
\ndiscrimination\tbetween\t newspapers and periodicals  as\t the
\nlatter\tare permitted to use unlimited quantity of  printing
\nand  writing  paper  in\t addition  to  their  allocation  of
\nnewsprint.\n<\/p>\n
767<\/span><\/p>\n
The Newsprint Policy of 1972-73 referred to as the Newsprint
\nPolicy\tdeals  with white printing  paper  (including  water
\nlined\tnewsprint  which  contained  mechanical\t wood\tpulp
\namounting  to  not  less  than 70  per\tcent  of  the  fibre
\ncontent).  Licences are issued for newsprint.  The  validity
\nof licences is for 12 months.  The Newsprint Policy  defines
\n“common\t ownership unit” to mean newspaper establishment  or
\nconcern\t  owning  two  or  more\t news  interest\t  newspapers
\nincluding  at least one daily irrespective of the centre  of
\npublication and language of such newspapers.  Four  features
\nof  the\t Newsprint  Policy are called  in  question.   These
\nrestrictions  imposed  by the Newsprint Policy are  said  to
\ninfringe   rights  of  freedom\tof  speech  and\t  expression
\nguaranteed in Article 19 (1)(a) of the Constitution.  First,
\nno  new\t paper\tor new edition can be started  by  a  common
\nownership   unit  even\twithin\tthe  authorised\t  quota\t  of
\nnewsprint.   Secondly, there is a limitation on the  maximum
\nnumber\tof pages to 10.\t No adjustment is permitted  between
\ncirculation  and  the  pages so as to  increase\t the  pages.
\nThirdly,   no  inter-changeability  is\t permitted   between
\ndifferent  papers  of  common ownership\t unit  or  different
\neditions  of the same paper.  Fourthly, allowance of 20\t per
\ncent  increase in page level up to a maximum of 10 has\tbeen
\ngiven  to newspapers, with less than 10 pages.\tIt  is\tsaid
\nthat  the  objectionable  and  irrational  feature  of\t the
\nNewsprint Policy is that a big daily newspaper is prohibited
\nand prevented from increasing the number of pages, page area
\nand   periodicity  by  reducing\t circulation  to  meet\t its
\nrequirement  even  within  its\tadmissible  quota.   In\t the
\nNewsprint  Policy  for\tthe year  1971-72  and\tthe  earlier
\nperiods\t the  newspapers and periodicals were  permitted  to
\nincrease  the number of pages, page area and periodicity  by
\nreducing  circulation.\t The current  policy  prohibits\t the
\nsame.\t The  restrictions  are,  therefore,  said   to\t  be
\nirrational,   arbitrary\t  and\tunreasonable.\t Big   daily
\nnewspapers  having  large  circulation\tcontend\t that\tthis
\ndiscrimination\tis bound to have adverse effects on the\t big
\ndaily newspapers.\n<\/p>\n
The  Newsprint\tPolicy\tis said\t to  be\t discriminatory\t and
\nviolative of Article 14 because common ownership units alone
\nare prohibited from starting a new paper or a new edition of
\nthe  same paper while other newspapers with only  one  daily
\nare  permitted\tto do so.  The\tprohibition  against  inter-
\nchangeability between different papers of the same unit\t and
\ndifferent editions of the said paper is said to be arbitrary
\nand irrational, because it treats all common ownership units
\nas  equal  and ignores pertinent  and  material\t differences
\nbetween\t some common ownership units as compared to  others.
\nThe  10 page limit imposed by the policy is said to  violate
\nArticle\t 14 because it equates newspapers which are  unequal
\nand provides the same permissible page limit for  newspapers
\nwhich  are  essentially local in their character  and  news-
\npapers which reach larger sections of people by giving world
\nnews
\n 14-L499Sup.CI\/73
\n768<\/span>
\nand  covering  larger  fields.\tThe  20\t per  cent  increase
\nallowed for newspapers, whose number of pages was less\tthan
\n10  is\talso  challenged  as  violative\t of  Article  14  by
\ndiscriminating against newspapers having more than 10 pages.
\nThe  difference\t in entitlement between newspapers  with  an
\naverage of more than 10 pages as compared with newspapers of
\n10  or\tless  than 10 pages is\tsaid  to  be  discriminatory
\nbecause\t the differentia is not based on rational  incidence
\nof classification.\n<\/p>\n
The import policy for newsprint has a history.\tFrom 1963-64
\nquota  of newsprint for dailies has been calculated  on\t the
\nbasis of page level of 1957 and circulation of 1961-62\twith
\nad  hoc increases for growth on the basis of  percentage  of
\npages  calculated  on  circulation  and\t allowance  of\tpage
\nincrease  of  not more than 2 pages at a time subject  to  a
\nmaximum of 12 pages.  The bulk of newsprint was imported  in
\nthe past.  Indigenous newsprint was limited in supply.\tFrom
\n1963-64 till 1970-71 printing and writing paper available in
\nour  country was taken into account for framing\t the  import
\npolicy.\t  The  quantity\t which could be\t made  available  to
\nconsumers of newsprint for the requirements of publishers of
\ntext  books were considered in that behalf.   After  1971-72
\nprinting  and writing paper was in short supply.   According
\nto   the  Government  this  was\t adversely   affecting\t the
\nrequirements  of the publishers of text books.\tThe loss  to
\nnewsprint  consumer  from  the\tnon-availability  of   white
\nprinting  paper\t was  made good in  additional\tquantity  of
\nimported  newsprint.   The  import quota  of  newsprint\t was
\nincreased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes
\nin 1971-72.\n<\/p>\n
From 1972-73 with regard to daily newspapers three principal
\nchanges were effected.\tFirst, the base year for circulation
\nwas  taken at 1970-71.\tSecond, the page level was taken  at
\nthe maximum of 10 pages instead of the previously  operating
\n10  page level.\t Those operating at a page level of over  10
\npages were given the facility of basing their required quota
\neither\ton actual circulation for 1970-71 or  admissible  or
\ncalculated  circulation\t for  1971-72  whichever  is   more.
\nThird,\tthe increase in quota for growth was allowed  as  in
\nthe  past,  In\tthe  case  of  circulation  growth  it\t was
\nstipulated  in terms of percentage of circulation  over\t the
\nprevious year.\tIn the case of page growth the maximum of 10
\npages was permitted.\n<\/p>\n
The  Additional\t Solicitor  General  raised  two  pleas\t  in
\ndemurrer.   First,  it was said that  the  petitioners\twere
\ncompanies  and therefore. they could not invoke\t fundamental
\nrights.\t  Secondly,  it was, said that Article\t358  of\t the
\nConstitution is a bar to any challenge by the petitioners of
\nviolation of fundamental rights.\n<\/p>\n
769<\/span><\/p>\n
This Court in State Trading Corporation of India Ltd. v. The
\nCommercial   Tax   Officer,   Visakhapatnam<\/a>(1)\t and\tTata
\nEngineering  &\tLocomotive  Co.\t v.  State  of\tBihar<\/a>  (2  )
\nexpressed  the\tview that a corporation was  not  a  citizen
\nwithin the meaning of Article 19, and, therefore, could\t not
\ninvoke that Article.  The majority held that nationality and
\ncitizenship  were distinct and separate concepts.  The\tview
\nof this Court was that the word “citizen” in Part 11 and  in
\nArticle\t 19 of the Constitution meant the same\tthing.\t The
\nresult\twas  that  an incorporated company could  not  be  a
\ncitizen\t so as to invoke fundamental rights.  In  the  State
\nTrading\t Corporation(1)\t case  (supra)\tthe  Court  was\t not
\ninvited\t  to  “tear  the  corporate  veil”.   In  the\tTata
\nEngineering  &\tLocomotive Co. (2) case (supra)\t this  Court
\nsaid that a company wag a distinct and separate entity\tfrom
\nshareholders.\tThe  corporate\tveil it was  said  could  be
\nlifted\tin cases where the company is charged  with  trading
\nwith  the  enemy  or  perpetrating  fraud  on  the   Revenue
\nauthorities.   Mukherjea J., in Chiranjit Lal  Choudhuri  v.
\nThe  Union of India & Ors.<\/a> (3 ) expressed the minority\tview
\nthat  an incorporated company can come up to this Court\t for
\nenforcement of fundamental rights.\n<\/p>\n
There  are however decisions of this Court where relief\t has
\nbeen granted to the petitioners claiming fundamental  rights
\nas  shareholders or editors of newspaper  companies.   These
\nare Express Newpapers (Private) Ltd. & Anr. v. The Union  of
\nIndia  &  Ors.(4)’and Sakal Papers (P) Ltd. &  Ors.  v.\t The
\nUnion of India<\/a> (5).\n<\/p>\n
In  Express  Newspapers (4 ) case (supra) the  Express\tNews
\npapers\t(Private Ltd. was the petitioner in a writ  petition
\nunder  Article\t32.  The Press Trust of\t India\tLimited\t was
\nanother\t petitioner in a similar writ petition.\t The  Indian
\nNational Press (Bombay) Private Ltd. otherwise known as\t the
\n“Free  Press  Group”  was a petitioner\tin  the\t third\twrit
\npetition.   The Saurashtra Trust was petitioner for a  chain
\nof newspapers in another writ petition.\t The Hindustan Times
\nLimited\t was  another petitioner.  These  petitions  in\t the
\nExpress\t Newspapers(4) case (supra) challenged the vires  of
\nthe   Working  Journalists  (Conditions\t of   Service)\t and
\nMiscellaneous\tProvisions  Act,  1955.\t   The\t petitioners
\ncontended  that the provisions of the Act violated  Articles
\n19(1) (a), 19(1)(g) and 14 of the Constitution.
\nIn Sakal Papers(5) case (supra) the petitioners were a\tPri-
\nvate  limited  company carrying on  business  of  publishing
\ndaily and weekly newspapers in Marathi and two\tshareholders
\nin the
\n(1) [1964] 4 S.C.R. 99.\t      (2) [1964] 6 S.C.R. 885.
\n(3) [1950]S.C.R. 869.\t     (4) [1959] S.C.R. 12.
\n (5) [1962] 3 S.C.R. 842.\n<\/p>\n
770<\/span><\/p>\n
company.   There  were\ttwo other petitions  by\t readers  of
\n“Sakar”\t newspaper.  ‘Me reader petitioners also  challenged
\nthe  constitutionality\tof the Act.  The  petitioners  there
\nchallenged the Daily Newspapers (Price and Page) Order, 1960
\nas contravening Article 19(1)(a) of the Constitution.
\nNeither in the Express Newspapers case (supra) nor in  Sakal
\nPapers\tcase  (supra) there appears to be  any\tplea  raised
\nabout the maintainability of the writ petition on the ground
\nthat one of the petitioners happened to be a company.
\nIn the Express Newspapers case (supra) this Court held\tthat
\nfreedom\t of speech and expression includes within its  scope
\nthe  freedom  of  the Press.  This  Court  referred  to\t the
\nearlier\t decisions in Romesh Thappar v. State  of  Madras<\/a>(1)
\nand  Brij  Bhushan v. State of Delhi<\/a>(2).   Romesh  Thappar’s
\ncase  (supra) related to a ban on the entry and\t circulation
\nof  Thapper’s  journal\tin the State  of  Madras  under\t the
\nprovisions  of the Madras Maintenance of Public\t Order\tAct,
\n1949.\tPatanjali Sastri, J. speaking for the Court said  in
\nRomesh\tThappar’s case (supra) that “there can be  no  doubt
\nthat  the freedom of speech and expression includes  freedom
\nof  propagation of ideas and that freedom is ensured by\t the
\nfreedom\t of  circulation.   Liberty  of\t circulation  is  as
\nessential  to  that freedom as the liberty  of\tpublication.
\nIndeed,\t without circulation publication would be of  little
\nvalue”.\t In Brij Bhushan’s case (supra) Patanjali Sastri, J.
\nspeaking  for  the majority judgment again said\t that  every
\nfree  man  has\tundoubted right to lay\twhat  sentiments  he
\npleases before the public; to forbid this, is to destroy the
\nfreedom\t of  the  press”.   Bhagwati,  J.  in  the   Express
\nNewspapers case (supra) speaking for the Court said that the
\nfreedom\t of  speech  and  expression  includes\tfreedom\t  of
\npropagation of ideas which freedom is ensured by the freedom
\nof  circulation\t and  that the liberty of the  press  is  an
\nessential  part\t of  the  right to  freedom  of\t speech\t and
\nexpression  and\t that the liberty of the press\tconsists  in
\nallowing no previous restraint upon publication.
\nDescribing  the impugned Act in the Express Newspapers\tcase
\n(supra) as a measure which could be legitimately  character-
\nised  to  affect  the  press this Court\t said  that  if\t the
\nintention  or the Proximate effect and operation of the\t Act
\nwas  such as to bring it within the mischief of\t Article  19
\n(1) (a) it would certainly be liable to be struck down.\t But
\nthe Court found in the Express Newspapers case (supra)\tthat
\nthe  impugned, measures were enacted for the benefit of\t the
\nworking\t journalists  and  it was,  therefore,\tneither\t the
\nintention nor the effect and operation
\n(1) [1950] S.C.R. 594\t\t    (2) [1950] S.C.R. 605
\n771<\/span>
\nof  the\t impugned Act to take away or abridge the  right  of
\nfreedom of speach and expression enjoyed by the petitioners.
\nThere  are ample observations of this Court in\tthe  Express
\nNewspapers  case  (supra)  to  support\tthe  right  of\t the
\npetitioner  companies there to invoke fundamental  right  in
\naid  of\t freedom of speech and expression enshrined  in\t the
\nfreedom of the press.  This Court said that if the  impugned
\nmeasure\t in that case fell within the vice of Article  19(1)\n<\/p>\n
(a)  it\t would\tbe  struck down.   This\t observation  is  an
\nillustration of the manner in which the truth and spirit  of
\nthe freedom of press is preserved and protected.
\nIn Sakal Papers case (supra) this Court struck down  section
\n3(1) of the Newspaper (Price and Page) Act, 1956 and allowed
\nthe petitioner company relief-on that basis.  In the,  Sakal
\nPapers case (supra) relief was\tgranted to the\tshareholders
\nand  the  company.   The Court\tthought\t it  unnecessary  to
\nexpress any opinion on the right of the readers to  complain
\nof infraction of fundamental rights in Article 19(1) (a)  by
\nreason of impact of law abridging or taking way the  freedom
\nof speech and expression.\n<\/p>\n
In  the\t present case, the petitioners in each case  are  in
\naddition  to the company the shareholders, the, editors\t and
\nthe  publishers.  In the Bennett Coleman group of cases\t one
\nshareholder,  a reader of the publication and three  editors
\nof the three dailies published by the Bennett Coleman  Group
\nare  the  petitioners.\t In  the  Hindustan  Times  case   a
\nshareholder  who  happened  to\tbe  a  Deputy  Director,   a
\nshareholder, a Deputy Editor of one of the publications, the
\nprinter\t and the publisher of the publications and a  reader
\nare  the  petitioners.\tIn the Express Newspapers  case\t the
\ncompany\t and  the  Chief  Editor  of  the  dailies  are\t the
\npetitioners.  In the Hindu case a shareholder, the  Managing
\nEditor,\t the publisher of the company are  the\tpetitioners.
\nOne of the important questions in these petitions is whether
\nthe  shareholder,  the\teditor,\t the  printer,\tthe   Deputy
\nDirector who are all citizens and have the right to  freedom
\nunder  Article 19(1) can invoke those rights for freedom  of
\nspeech\tand expression, claimed by them for freedom  of\t the
\npress  in their daily publication.  The petitioners  contend
\nthat as a result of the Newsprint Control Policy of  1972-73
\ntheir  freedom\tof speech and expression  exercised  through
\ntheir editorial staff and through the medium of publications
\nis  infringed.\tThe petitioners also challenge the  fixation
\nof  10 page ceiling and the restriction on  circulation\t and
\ngrowth on their publications to be not only violative of but
\nalso  to  abridge and take away the freedom  of\t speech\t and
\nexpression  of\tthe  shareholders  and\tthe  editors.\t The
\nshareholders,  individually  and in  association  with\tone,
\nanother represent the medium
\n772<\/span>
\nof  newspapers through which they disseminate and  circulate
\ntheir views and news.  The newsprint policy express them  to
\nheavy financial loss and impairs their right to carry on the
\nbusiness  of printing and publishing of the dailies  through
\nthe medium of the companies.\n<\/p>\n
In  R. C. Cooper v. Union of India<\/a> (1) which is referred  to
\nas  the Bank Nationalisation(1) case Shah, J.  speaking\t for
\nthe  majority  dealt with the contention  raised  about\t the
\nmaintainability of the petition.  The petitioner there was a
\nshareholder,  a\t Director and holder of deposit\t of  current
\naccounts   in the Bank.\t The locus standi of the  petitioner
\nwas  challenged on the ground that no fundamental  right  of
\nthe petitioner there was directly impaired by the  enactment
\nof the Ordinance and the Act or any action taken thereunder.
\nThe  petitioner\t in the Bank  Nationalisation  case  (supra)
\nclaimed that the rights guaranteed to him under Articles 14,
\n19   and  31  of  the  Constitution  were   impaired.\t The
\npetitioner’s  grievances  were\tthese.\t The  Act  and\t the
\nOrdinance were without legislative competence.\tThe Act\t and
\nthe  Ordinance interfered with the guarantee of\t freedom  of
\ntrade.\t They  were  not  made\tin  public  interest.\t The
\nPresident  had\tno power to promulgate\tthe  Ordinance.\t  In
\nconsequence of hostile discrimination practiced by the State
\nthe  value of the petitioner’s investment in the  shares  is
\nreduced.   His\tright  to  receive  dividends  ceased.\t  He
\nsuffered financial loss.  He was deprived of the right as  a
\nshareholder  to carry on business through the agency of\t the
\ncompany.\n<\/p>\n
The  ruling  of\t this Court  in\t Bank  Nationalisation\tcase
\n(supra) was this :\n<\/p>\n
\t      “A measure executive or legislative may impair
\n\t      the  rights of the company alone, and  not  of
\n\t      its shareholders; it may impair the rights  of
\n\t      the  shareholders not of the Company;  it\t may
\n\t      impair the rights of the shareholders as\twell
\n\t      as of the company.  Jurisdiction of the  Court
\n\t      to  grant\t relief cannot be  denied,  when  by
\n\t      State  action  the rights\t of  the  individual
\n\t      shareholder  are\timpaired, if-  that  action,
\n\t      impairs  the  rights of the Company  as  well.
\n\t      The   test   in\tdetermining   whether\t the
\n\t      shareholder’s right is impaired is not formal;
\n\t      it  is essentially qualitative; if  the  State
\n\t      action impairs the right of the  shareholders-
\n\t      as well as of the Company, the Court will not,
\n\t      concentrating   merely  upon   the   technical
\n\t      operation\t  of   the   action,   deny   itself
\n\t      jurisdiction to grant relief.”
\n\t      (1)   [1970] 3 S.C.R. 530.\n<\/p><\/blockquote>\n
773<\/span><\/p>\n
In the Bank Nationalisation case (supra) this Court held the
\nstatute to be void for infringing the rights under  Articles
\n19(1)(f)  and  19(1)(g) of the Constitution.   In  the\tBank
\nNationalisation\t  case\t (supra)  the\tpetitioner   was   a
\nshareholder and a director of the company which was acquired
\nunder the statute.  As a result of the Bank  Nationalisation
\ncase (supra)   it  follows that the Court finds out  whether
\nthe  legislative  measure directly touches  the\t company  of
\nwhich  the  petitioner is a shareholder.  A  shareholder  is
\nentitled to protection of Article 19.  That individual right
\nis  not lost by reason of the fact that he is a\t shareholder
\nof  the company.  The Bank Nationalisation case (supra)\t has
\nestablished   the  view\t that  the  fundamental\t rights\t  of
\nshareholders as citizens are not lost when they associate to
\nfrom   a   company.   When  their  fundamental\t rights\t  as
\nshareholders  are impaired by State action their  rights  as
\nshareholders   are  protected.\t The  reason  is  that\t the
\nshareholders’ rights are equally and necessarily affected if
\nthe.  rights  of the company are affected.   The  rights  of
\nshareholders with regard to Article 19(1) (a) are projected
\nand manifested by the newspapers owned and controlled by the
\nshareholders through-the medium of the corporation.  In\t the
\npresent case, the individual rights of freedom of speech and
\nexpression  of editors, Directors and shareholders  are\t all
\nexercised through their newspapers through which they speak.
\nThe  press reaches the public through the  Newspapers.\t The
\nshareholders   speak  through their editors- The  fact\tthat
\nthe  companies\tare the petitioners does  not  prevent\tthis
\nCourt  from  giving  relief to\tthe  shareholders,  editors,
\nprinters who have asked for protection of their\t fundamental
\nrights by reason of the effect of the law and of the  action
\nupon  their  rights.  The locus standi\tof  the\t shareholder
\npetitioners  is\t beyond challenge after the ruling  of\tthis
\nCourt  in  the\tBank  Nationalisation  case  (supra).\t The
\npresence of the\t    company is on the same ruling not a\t bar
\nto the grant of relief.\n<\/p>\n
The  rulings in Sakal Papers case (supra) and Express  News-
\npapers\tcase  (supra)  also support the\t competence  of\t the
\npetitioners to maintain the proceedings.
\nArticle\t  358  of  the\tConstitution  was  invoked  by\t the
\nAdditional    Solicitor\t General  to raise the\tbar  to\t the
\nmaintainability of the petition.  Under Article 358 while  a
\nproclamation  of  a  emergency is in  operation\t nothing  in
\nArticle 19 shall restrict the power of the State to make any
\nlaw  or to take any executive action which the\tState  would
\nbut  for the provisions contained in that Part be  competent
\nto  make or to take.  It was, therefore, said on  behalf  of
\nthe Government that the petitioners could not challenge\t the
\n1972-73\t  Newsprint  Policy  during  the   proclamation\t  of
\nemergency.   Counsel on behalf of the petitioners  contended
\nthat   Article\t358  is\t inapplicable  because\tit  has\t  no
\napplication to the law or executive
\n774<\/span>
\naction\ttaken prior to the proclamation of  emergency.\t The
\nNewsprint  Policy  was\tsaid by the  petitioners  to  be  a,
\ncontinuation   of  the\told  newsprint\tpolicy\t which\t had
\noriginated  earlier  and continued from year to year  for  a
\ndecade\ttill  the proclamation of emergency  in\t 1971.\t The
\nrestrictions  on  newsprint policy were imposed\t before\t the
\nproclamation  of  emergency.  It was, therefore,  said\tthat
\nthese restrictions could be challenged.\n<\/p>\n
In  District Collector of Hyderabad & Ors. v. M\/s Ibrahim  &
\nCo.<\/a> etc.(1) this Court considered whether the Sugar  Control
\nOrder  1963 was protected under Article 358 and 359  because
\nthe  President\thad declared that state of  emergency.\t The
\nSugar  Control\tOrder 1963 was made in\texercise  of  powers
\nconferred  by  section 3 of the Essential  Commodities\tAct.
\nThe  order placed restrictions on sale and delivery  by\t the
\nproducers.   The  Order\t also  controlled  the\t production,
\ndistribution  of sugar by producers or\trecognised  dealers.
\nThe  Order regulated the movement of sugar at  fixed  price.
\nThe state of emergency was declared on 28 October, 1962.  It
\nwas contended that on the issue of proclamation of emergency
\nthe  State is, for the duration of the emergency,  competent
\nto  enact  legislation notwithstanding that it\timpairs\t the
\nfreedoms guaranteed by Article 19 of the Constitution.\t The
\nState was also said to be competent to take executive action
\nduring\tthe proclamation of emergency which the State  would
\nfor  the  provisions  contained\t in  Article’  19  of,\t the
\nConstitution be competent to make. In Ibrahim’s case (supra)
\nthe  State  made  an  executive order.\t It  was  said\t“the
\nexecutive action of the State Government which is  otherwise
\ninvalid\t is  not  immune  from\tattack,\t merely\t because   a
\nproclamation of emergency is in operation when it is taken”.
\nThe  Order of the State Government in that case was held  to
\nbe  contrary to statutory provisions contained in the  Sugar
\nDealers\t Licensing Order and the Sugar Control\tOrder.\t The
\nexecutive  action was, therefore, held not to  be  protected
\nunder Article 358 of the Constitution.\n<\/p>\n
Originally,  the petitioners challenged the validity of\t the
\nNewsprint  Policy for 1971-72.\tThe petitions were  amended.
\nAs a result of the amendment the petitioners challenged\t the
\nvalidity of the 1972-73 newsprint policy.  The contention of
\nthe  petitioners is correct that the impeached policy  is  a
\ncontinuation of the old policy.\t Article 358 does not  apply
\nto  executive action taken during the emergency if the\tsame
\nis  a  continuation  of the prior  executive  action  or  an
\nemanation  of the previous law which prior executive  action
\nor  previous law would otherwise be violative of Article  19
\nor be otherwise unconstitutional.  The contention on  behalf
\nof  the\t Government  that the 1972-73  policy  is  protected
\nduring\t the  proclamation  of\temergency  and\tis  a\tmere
\nadministrative\taction is unsound Executive action which  is
\nunconstitutional
\n(1)  [1970] 3 S.C.R. 498.\n<\/p>\n
775<\/span><\/p>\n
is not immune during the proclamation of emergency.   During
\nthe proclamation of emergency Article 19 is suspended.\t But
\nit  would not authorise the taking of detrimental  executive
\naction during the emergency affecting the fundamental rights
\nin  Article  19\t without any  legislative  authority  or  in
\npurported  exercise of power conferred by any  pre-emergency
\nlaw which was invalid when enacted.\n<\/p>\n
This  Court  in\t State of Madhya Pradesh &  Anr.  v.  Thakur
\nBharat\tSingh<\/a>(1)  considered whether  the  State  Government
\ncould make an order under the Madhya Pradesh Public Security
\nAct 1959 directing that Thakur Baharat Singh shall not be in
\nany place in Raipur District and that he was to reside in  a
\nnamed  town.   The Order was made on 24\t April,\t 1963.\t The
\nGovernment  contended  in the Madhya Pradesh  case  (supra),
\nthat Article 358 protected legislative and executive  action
\ntaken after the proclamation of emergency which was declared
\non 20 October, 1962.  This Court rejected the contention  of
\nthe State that the Order was protected by Article 358.\tThis
\nCourt  held that if the power conferred by the 1959  Act  to
\nimpose\tunreasonable  restrictions offended  Article  13  by
\ntaking away or abridging the rights conferred by Part El  of
\nthe  Constitution  the law in contravention  of\t Article  13
\nwould  be  void.   Article 358 suspends\t the  provisions  of
\nArticle\t 19 during an emergency.  This Court said  that\t all
\nexecutive  action  which operates to the  prejudice  of\t any
\nperson must have the authority of law to support it, and the
\nterms of Article 358 do not detract from that rule.  Article
\n358  expressly authorises the State to take  legislative  or
\nexecutive action provided such action was competent for\t the
\nState\tbut   for  the\tprovisions  in\tPart  III   of\t the
\nConstitution.\tArticle 358 does not invest the\t State\twith
\narbitrary  authority  to  take action to  the  prejudice  of
\ncitizens, and others; it merely provides that so long as the
\nproclamation  of emergency subsists law may be\tenacted\t and
\nexecutive  action  may\tbe  taken  in  pursuance  of  lawful
\nauthority,  which  if  the provisions  of  Article  19\twere
\noperative  would have been invalid.  Every act done  by\t the
\nGovernment  or by its officers must, if it is to operate  to
\nthe   prejudice\t of  any  person,  be  supported   by\tsome
\nlegislative authority.\tThe Madhya Pradesh was (supra) is an
\nauthority  for\tthe proposition that Article  358  does\t not
\noperate\t to  validate  any legislative\tprovision  which  is
\ninvalid\t because of the constitutional prohibition.  In\t the
\npresent case, the impugned newsprint policy is\tcontinuation
\nof  prior executive action and of previous law.\t  Therefore,
\nin  our\t judgment  there is no\tmerit  in  this\t preliminary
\nobjection.\n<\/p>\n
The Additional Solicitor General contended that the right to
\nimport and utilise newsprint was not a common law right.  It
\nwas said to be a special right covered by several  statutes.
\nThe Imports
\n(1)  [1967] 2 S.C.R. 454.\n<\/p>\n
776<\/span><\/p>\n
and  Exports Act 1947, the Imports Control Order, 1955,\t the
\nEssential  Commodities\tAct 1955 and the  Newsprint  Control
\nOrder  1962 were referred to in support of  the\t proposition
\nthat if the petitioners asked for a quota of newsprint\tthey
\nhad  to abide the conditions prescribed.  It was  also\tsaid
\nthat the Press would have no special fundamental right under
\nArticle\t  19  (1)  (a).\t  The  legislative  measures   were,
\ntherefore,  said  by  the Government  to  be  regulation  of
\nnewspaper business even though there might be the incidental
\nresult\tof curtailing circulation.  Reliance was  placed  on
\nthe decisions in Express Newspapers case (supra) and Hamdard
\nDawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India  &
\nOrs.<\/a>(1), in support of the contention that there would be no
\nabridgement of fundamental right of the press if as a result
\nof regulation of newspaper business there was the incidental
\neffect of curtailing circulation.  The Newsprint Policy\t was
\ndefended  by the Government to be in aid of  allowing  small
\nnewspapers to grow and to prevent a monopolistic combination
\nof big newspapers.\n<\/p>\n
The  power of the Government to import newsprint  cannot  be
\ndenied.\t  The  power  of  the  Government  to  control\t the
\ndistribution of newsprint cannot equally be denied.  It has,
\nof course, to be borne in mind that the distribution must be
\nfair  and equitable.  The interests of the big,\t the  medium
\nand   the  small  newspapers  are  all\tto  be\ttaken\tinto
\nconsideration  at the time of allotment of quotas.   In\t the
\npresent\t case, there was some dispute raised as\t to  whether
\nthere should be more import of newsprint.  That is a  matter
\nof Government policy.  This Court cannot adjudicate on\tsuch
\npolicy measures unless the policy is alleged to be malafide.
\nEqually,  there\t was  a\t dispute  as  to  the  quantity\t  of
\nindigenous  newsprint available for newspapers.\t This  Court
\ncannot go into such disputes.\n<\/p>\n
The  petitioners  raised  a  question  as  to  whether\t the
\nNewsprint  Control  Policy  is\ta  newsprint  control  or  a
\nnewspaper control.  Mr. Palkhivala characterised the measure
\nto  be\tnewspaper  control  with  degrees  of  subtlety\t and
\nsophistication.\t   Rationing  of  newsprint   is   newsprint
\ncontrol.   That is where quota is fixed.  Newspaper  control
\ncan  be said to be post-quota restrictions.  The  post-quota
\nrestrictions are described by Mr. Palkhivala to be newspaper
\ncontrol.    The\t  newspaper  control,\taccording   to\t the
\npetitioners, is achieved by measures adopted in relation  to
\ncommon ownership units owning two or more newspapers.  These
\ncommon\townership  units are not allowed to  bring  out\t new
\npapers\tof new editions of their dailies.  These are not  to
\nhave  interchangeability  of quota within  their  unit.\t  In
\naddition  large papers are not allowed to have more than  10
\npages.\tIt was said that in the past several years Newsprint
\nControl Policy worked remarkably without any challenge.
\n(1) [1960] 2 S.C.R. 671.\n<\/p>\n
777<\/span><\/p>\n
Article 19(1) (a) provides that all citizens shall have\t the
\nright  to freedom of speech and expression.  Article 19\t (2)
\nstates\tthat. nothing in sub-clause (a) of clause (1)  shall
\naffect\tthe operation; of any existing law, or\tprevent\t the
\nState  from making any law, in’. so far as such law  imposes
\nreasonable  restrictions  on  the  exercise  of\t the   right
\nconferred  by  the said sub-clause in the interests  of\t the
\nsecurity  of  the  State, friendly  relations  with  foreign
\nStates, public order, decency or morality, or in relation to
\ncontempt  of Court, defamation or incitement to an  offence.
\nAlthough Article 19(1) (-a) does not mention the freedom  of
\nthe Press, it is the settled view of this Court that freedom
\nof  speech and expression includes freedom of the Press\t and
\ncirculation.\n<\/p>\n
In the Express Newspapers case (supra) it is said that there
\ncan  be no doubt that liberty of the Press is  an  essential
\npart  of the freedom of speech and expression guaranteed  by
\nArticle\t 19  (1)  (a).\t The Press has\tthe  right  of\tfree
\npropagation  and  free\tcirculation  without  any   previous
\nrestraint on publication.  If a law were to, single out\t the
\nPress  for laying down prohibitive burdens on it that  would
\nrestrict the circulation, penalise its freedom of choice  as
\nto  personnel,\tprevent newspapers from\t being\tstarted\t and
\ncompel’\t the  press to Government aid.\tThis  would  violate
\nArticle\t 19  (1)(a), and would fall outside  the  protection
\nafforded by Article 19 (2).\n<\/p>\n
In Sakal Papers case (supra) it is said that the freedom  of
\nspeech\tand expression guaranteed by Article 19 (1) gives  a
\ncitizen\t the  right to propagate and publish  his  ideas  to
\ndisseminate them, to circulate them either by words of mouth
\nor by writing.\tThis right extends not merely to the  matter
\nit  is\tentitled  to circulate but also\t to  the  volume  of
\ncirculation.   In  Sakal Papers case (supra)  the  Newspaper
\n(Price\tand  Page)  Act\t 1956  empoweredthe  Government\t  to
\nregulate the prices of newspapers in relation to their pages
\nand  sizes  and\t to regulate the  allocation  of  space\t for
\nadvertisement  matter.\t The Government fixed  the  maximum-
\nnumber\tof  pages  that might be  published  by\t a  newpaper
\naccording  to the price charged.  The Government  prescribed
\nthe number of supplements that would be issued.\t This  Court
\nheld  that  the Act and the Order placed restraints  on\t the
\nfreedom\t of the press to circulate.  This Court\t also  held.
\nthat,  the freedom of speech could’ no+. be  restricted\t for
\nthe   purpose  of  regulating  the  commercial\taspects\t  of
\nactivities of the newspapers.\n<\/p>\n
Publication means dissemination and circulation.  The  press
\nhas to carry on its activity by keeping in view the class of
\nreaders,  the,conditions  of  labour,  price  of   material,
\navailability  of  advertisements,  size\t of  paper  and\t the
\ndifferent   kinds   of\t news  comments\t  and’\t views\t and
\nadvertisements\twhich  are to be published  and\t circulated.
\nThe  law which lays excessive and prohibitive burden  which,
\nwould  restrict the circulation of a newspaper will  not  be
\nsaved by
\n778<\/span>
\nArticle 19 (2).\t If the area of advertisement is restricted,
\nprice  of paper goes up.  If the price goes  up\t circulation
\nwill go down.  This was held in Sakai Papery case (supra) to
\nbe  the direct consequence of curtailment of  advertisement.
\nThe  freedom of a newspaper for publish any number of  pages
\nor to circulate it to any number of persons has been held by
\nthis  Court to be an integral part of the freedom of  speech
\nand  expression.   This\t freedom  is  violated\tby   placing
\nrestraints  upon it or by placing restraints upon  something
\nwhich is an essential part of that freedom.  A restraint  on
\nthe  number  of\t pages, a restraint  on\t circulation  and  a
\nrestraint  on  advertisements would affect  the\t fundamental
\nrights\t under\t Article  19  (1)(a)  on  the\taspects\t  of
\npropagation, publication and circulation.
\nThis Court in Hamdard Dawakhana case (supra) considered\t the
\neffect\t of   Drugs  and   Magic   Remedies   (Objectionable
\nAdvertisement) Act, 1954 in relation to Articles 19  (1)(a),
\n19  (1) (f), 19 (1)(g) and 19(6).  The Act in that case\t was
\nto  control the advertisement of drugs in certain  cases  to
\nprohibit the advertisement for certain purposes of  remedies
\nalleged\t to  possess  magic qualities  and  to\tprovide\t for
\nmatters connected therewith.  The Act was challenged on\t the
\nground\tof violation of fundamental rights.  The  ruling  of
\nthis   Court   in  Hamdard  Dawakhana  case   (supra)\tthat
\nadvertisement  is no doubt a form of speech and it  is\tonly
\nwhen  an advertisement is considered with the expression  or
\npropagation of idea that it can be said to relate to freedom
\nof  speech.  The right to publish commercial  advertisements
\nis not a part of freedom of speech.\n<\/p>\n
The  Additional Solicitor General contended that  the  news-
\nprint  policy  did  not violate Article\t 19  (1)  (a).\t The
\nreasons advanced were these.  The newsprint policy does\t not
\ndirectly  and immediately deal with, the right mentioned  in
\nArticle\t 19  (1)(a).  The test of violation is\tthe  subject
\nmatter and not the effect or result of the legislation.\t  If
\nthe  direct  object of the impugned law or action  is  other
\nthan  freedom of speech and expression Article 19 (1)(a)  is
\nnot  attracted\tthough the right to freedom  of\t speech\t and
\nexpression may be consequentially or incidentally  abridged.
\nThe rulings of this Court in Express Newspapers case (supra)
\nand Hamdard Dawakhana case (supra) were referred to.  In the
\nExpress\t Newspapers  case (supra) the Act was said to  be  a
\nbeneficent  legislation intended to regulate the  conditions
\nof service of the working journalists.\tIt was held that the
\ndirect and inevitable result of the Act could not be said to
\nbe  taking  away  or abridging the  freedom  of\t speech\t and
\nexpression  of the petitioners.\t In. the  Hamdard  Dawakhana
\ncase  (supra) the scope\t and object of the Act and its\ttrue
\nnature and character were found to be not interference\twith
\nthe  right  of freedom of speech but to deal with  trade  or
\nbusiness.  The subject matter of the import policy in the
\n779<\/span>
\npresent\t case  was  rationing  of  imported  commodity\t and
\nequitable  distribution of newsprint.  The  restrictions  in
\nfixing\tthe page level and circulation were  permissible  as
\ndirections, which were considered necessary in order to\t see
\nthat  the imported newsprint was. properly utilised for\t the
\npurpose\t for  which  the import\t was  considered  necessary.
\nArticle 369 of the Constitution shows that rationing of\t and
\ndistribution of quota of newsprint and regulation of  supply
\nis  not\t a direct infringement of Article  19  (1)(a).\t The
\nscarcity  of  newspapers Justifies the\tregulation  and\t the
\ndirection  in the manner of use.  The American\tdecision  in
\nRed Lion Broadcasting Cc.. v. Federal Communications Com.(1)
\nwas relied on to show that neither regulation nor  direction
\nwith regard to medium of expression encroaches on the  First
\nAmendment  right of the American  Constitution.\t  Regulatory
\nstatutes  which\t do not control the content  of\t speech\t but
\nincidentally limit the unfettered exercise are not  regarded
\nas  a type of law which the First Amendment to the  American
\nConstitution  forbade the Congress of the United  States  to
\npass.\t‘the  decision in United States\t v.  O’Brien(1)\t was
\nrelied on as an authority for such regulation and control of
\nthe  content  of  speech.   Any\t incidental  limitation\t  or
\nincidental   restriction  on  the  freedom  of\t speech\t  is
\npermissible  if the same is essential to the furtherance  of
\nimportant  governmental\t interest in regulating\t speech\t and
\nfreedom.\n<\/p>\n
The  Additional\t Solicitor General further put\temphasis  on
\nthe, pith and substance of the Import Control Act to control
\nimports,  and  exports\tfor these reasons.   One  method  of
\ncontrolling import is to regulate the use and disposition of
\nthe  goods  after they are, bought.  The decision  in  Abdul
\nAziz  Amiudin  v. State of Maharashtra<\/a>(1)  was\treferred  to
\nindicate  that\tthe scope of control of import\textended  to
\nevery stage at which the Government felt it necessary to see
\nthat  the  goods  were properly\t utilised.   Therefore,\t the
\nGovernment submission is that regulations regarding utilisa-
\ntion of goods by importers after import is not a  regulation
\nwith regard to production, supply and distribution of  goods
\nso as to attract Entry 29 List 11 of the Government of India
\nAct,  1935  corresponding  to Entry 27 of  List\t 11  in\t the
\nConstitution.\tIt  was\t said that even\t if  there  was\t any
\ntrenching on Entry 29 List II of’ the 1935 Act corresponding
\nto  Entry  27  List II of the Constitution it  would  be  an
\nincidental  encroachment not affecting the validity of’\t the
\nAct.   The directions in the control policy are,  therefore,
\njustified  by  the  Government under clause 5  of  the\t1955
\nImport\tControl\t Order read with section 3(1)  of  the\t1947
\nImport ‘and Export Act and they are also justified under the
\nprovisions of clause 3 of the Newsprint Control Order- 1962.
\n(1)  [1969] 393 US 367-23L Ed. 2d. 371.\n<\/p>\n
 (2) [1968] 391 US 367-20 L. Ed. 2d. 672..\n<\/p>\n
(3) [1964] 1 S.C.R. 830.\n<\/p>\n
780<\/span><\/p>\n
The Newsprint Control Order 1962 was said to give sufficient
\nguidance with regard to exercise of powers.  Clause 3(5)  of
\nthe Control Order of 1962 indicated that the Controller\t was
\nto  have  regard to the principles.  The import\t policy\t was
\nupheld\tby the Government to have  administrative  character
\nfor  guidance. in the matter of grant of licences.   It\t was
\nsaid  that the impeached newsprint policy was given  to\t the
\npublic\tas information regarding principles governing  issue
\nof  import  licences.\tThe import  policy  was\t evolved  to
\nfacilitate mechanism of the Act.  The Import policy was said
\nto  have necessary flexibility for six years prior to  April
\n1961.\tThe  Newsprint Policy  operated\t successfully.\t The
\nController has not abused his power.\n<\/p>\n
Mr. Palkhivala said that the tests of pith and substance  of
\nthe  subject, matter and of direct and of incidental  effect
\nof the legislation are relevant to questions of\t legislative
\ncompetence  but\t they  are irrelevant  to  the\tquestion  of
\ninfringement  of fundamental rights.  In our view this is  a
\nsound and correct approach to interpretation of\t legislative
\nmeasures and State action in relation to fundamental rights.
\nThe  true test is whether the effect of the impugned  action
\nis  to\ttake away or abridge fundamental rights.  if  it  be
\nassumed that the direct object of the law or action has\t to.
\nbe  direct  abridgment of the right of free  speech  by\t the
\nimpugned  law  or  action  it  is  to  be,  related  to\t the
\ndirectness  of\teffect\tand not to  the\t directness  of\t the
\nsubject\t matter of the impeached law or action.\t The  action
\nmay  have a direct effect on a fundamental,  right  although
\nits direct subject matter may be different.  A law’  dealing
\ndirectly  with\tthe Defence of India or defamation  may\t yet
\nhave  a\t direct effect on the freedom  of  speech.   Article
\n19(2)  could  not  have\t such  law  if\tthe  restriction  is
\nunreasonable  even  if it is related  to  matters  mentioned
\ntherein.   Therefore,  the  word “direct” would\t go  to\t the
\nquality\t or character of the effect and not to\tthe  subject
\nmatter.\t  The  object  of the law  or  executive  action  is
\nirrelevant  when it establishes the petitioner’s  contention
\nabout fundamental right.  In the present case, the object of
\nthe  newspaper\trestrictions  has nothing  to  do  with\t the
\navailability of newsprint or foreign exchange because  these
\nrestrictions  come into operation after the grant of  quota.
\nTherefore  the\trestrictions are to control  the  number  of
\npages  or  circulation\tof  dailies  or\t newspapers.   These
\nrestrictions are clearly outside the ambit of Article  19(2)
\nof the Constitution.  It, therefore, confirms that the right
\nof  freedom  of speech and expression is abridged  by  these
\nrestrictions.\n<\/p>\n
The  question neatly raised by the petitioners\twas  whether
\nthe  impugned Newsprint Policy is in substance\ta  newspaper
\ncontrol.   A  newspaper control policy is  ultra  vires\t the
\nImport\tControl Act and the Import Control Order.  Entry  19
\nof  List  1  of the 1935 Act  could  empower  Parliament  to
\ncontrol imports.  Both the State legislature and  Parliament
\nhave power to legislate upon newspapers
\n781<\/span>
\nfalling\t under\tEntry  17 of List III.\tThe  two  fields  of
\nlegislation  are  different.   The Import  Control  Act\t may
\ninclude control of import of newsprint but it does not allow
\ncontrol of newspapers.\tThe machinery of the Import  Control
\ncannot be utilised to curb or control circulation of  growth
\nor  freedom of newspapers in India.  The pith and  substance
\ndoctrine is used in ascertaining whether the Act falls under
\none Entry while incidentally encroaching upon another Entry.
\nSuch a question does not arise here.  The Newsprint  Control
\nPolicy\tis found to be newspaper control order in the  guise
\nof framing an Import Control Policy for newsprint.
\nThis  Court  in the Bank Nationalisation case  (supra)\tlaid
\ndown two tests.\t First it is not the object of the authority
\nmaking\tthe law impairing the right of the citizen  nor\t the
\nform  of action that determines the invasion of\t the  right.
\nSecondly,  it is the effect of the law and the\taction\tupon
\nthe  right which attracts the jurisdiction of the  court  to
\ngrant  relief.\t The direct operation of the  Act  upon\t the
\nrights forms the real test.\n<\/p>\n
In  Sakal  Papers case (supra) this Court  referred  to\t the
\nruling in Dwarkadas Shrinivas v. The Sholapur & Weaving\t Co.
\nLtd.<\/a>(,)’  that it is the substance and the practical  result
\nof  the\t act of the State that should be  considered  rather
\nthan  the pure legal form.  The correct approach _should  be
\nto enquire what in substance is the loss or injury caused to
\nthe  citizen and not merely what manner and method has\tbeen
\nadopted by the State in placing the, restrictions. in  Sakal
\nPapers case (supra) raising the price affected and infringed
\nfundamental rights.  In Sakal Papers case (supra) this Court
\nsaid  that the freedom of a newspaper to publish any  number
\nof pages or to circulate it to any number of persons is each
\nan integral part of the freedom of speech and expression.  A
\nrestraint  placed  upon\t either of them would  be  a  direct
\ninfringement   of  the\tright  of  freedom  of\tspeech\t and
\nexpression.   The impact on the freedom of the\tpress  would
\nstill be direct in spite of the fact that it is not said  so
\nwith  words.   No law or action would state  in\t words\tthat
\nrights\tof freedom of speech and expression are abridged  or
\ntaken  away.  That is why Courts have to protect  and  guard
\nfundamental  rights by considering the scope and  provisions
\nof the Act and its effect upon the fundamental rights.\t The
\nruling of this Court in Bank Nationalisation case (supra) is
\nthe  test  of direct operation upon the rights.\t  By  direct
\noperation  is meant the direct consequence or effect of\t the
\nAct  upon the rights.  The decision of the Privy Council  in
\nCommonwealth of Australia v. Bank of New South Wales(2) also
\nreferred  to  the  test,  as  to  whether\/the  Act  directly
\nrestricted  inter-State\t business of banking,  in  order  to
\nascertain whether the Banking Act 1947 in that case
\n(1) [1954] S.C.R. 674.\t    (2) [1950] A.C. 235.\n<\/p>\n
782<\/span><\/p>\n
is  aimed  or  directed\t at, and  the  purpose,\t object\t and
\nintention  of the Act is restriction of\t inter-State  trade,
\ncommerce and inter-course.\n<\/p>\n
The  various provisions of the newsprint import policy\thave
\nbeen  examined\tto  indicate  as  to  how  the\tpetitioners’
\nfundamental  rights have been infringed by the\trestrictions
\non  page limit, prohibition against new newspapers  and\t new
\neditions.  The effect and consequence of the impugned policy
\nupon  the newspapers is directly controlling the growth\t and
\ncirculation  of\t newspapers.   The  direct  effect  is\t the
\nrestriction  upon  circulation of  newspapers.\t The  direct
\neffect\tis  upon growth of newspapers  through\tpages.\t The
\ndirect effect is that newspapers are deprived of their\tarea
\nof  advertisement.   The  direct effect\t is  that  they\t are
\nexposed\t to  financial\tloss.  The  direct  effect  is\tthat
\nfreedom of speech and expression is infringed.
\nThe Additional Solicitor General contended that a law  which
\nmerely\tregulates even directly the freedom of the press  is
\npermissible so long as there is no abridgment or taking away
\nof the fundamental rights of citizens.\tHe leaned heavily on
\nAmerican  decisions  in support of the submission  that\t the
\nright  of  the press of free expression is of  all  citizens
\nspeaking,  publishing and printing in all languages and\t the
\ngrave concern for freedom of expression which permitted\t the
\ninclusion  of  Article\t19 (1)(a) is not to  be\t read  as  a
\ncommand\t that the Government of Parliament is without  power
\nto  protect that freedom.  The Constitutional guarantees  of
\nfreedom of speech and expression are said by the  Additional
\nSolicitor  General to be not so much for the benefit of\t the
\npress  as  for\tthe benefit of all people.   In\t freedom  of
\nspeech,\t according to the Additional Solicitor\tGeneral,  is
\nincluded the right of the people to read and the freedom  of
\nthe press assures maintenance of an open society.  What\t was
\nemphasized on behalf of the Government was that the  freedom
\nof  the\t press\tdid not countenance the\t monopolies  of\t the
\nmarket.\n<\/p>\n
It is indisputable that by freedom of the press is meant the
\nright  of all citizens to speak, publish and  express  their
\nviews.\t The freedom of the press embodies the right of\t the
\npeople\t to  read.   The  freedom  of  the  press   is\t not
\nantithetical  to  the  right of +,he  people  to  speak\t and
\nexpress.\n<\/p>\n
Article\t 13  of our Constitution states that  the  State  is
\nprohibited from making any law which abridges or takes\taway
\nany  fundamental  rights.  Again, Article  19(2)  speaks  of
\nreasonable  restrictions  on  the  exercise  of\t fundamental
\nrights\t to   freedom  of  speech   and\t  expression.\t Our
\nConstitution  does not speak of laws regulating\t fundamental
\nrights.\t  But there is no bar on legislating on the  subject
\nof  newspapers\tas  long  as  legislation  does\t not  impose
\nunreasonable  restrictions  within the\tmeaning\t of  Article
\n19(2).\tIt
\n783<\/span>
\nis also important to notice as was done in earlier decisions
\nof  this  Court\t that our Article  19(1)(a)  and  the  First
\nAmendment  of the American Constitution are different.\t The
\nFirst Amendment of the American Constitution enacts that the
\nCongress  shall make no law……. abridging the freedom  of
\nspeech\tor  of\tthe press.   The  American  First  Amendment
\ncontains  no  exceptions  like our Article  19\t(2)  of\t the
\nConstitution.  Therefore,  American decisions  have  evolved
\ntheir\town,  exceptions.  Our\tArticle\t 19(2)\t speaks\t  of
\nreasonable  restrictions.  Our Article 13  states  that\t the
\nState  shall  not  make\t laws which  abridge  or  take\taway
\nfundamental rights in Part III of the Constitution.\n<\/p>\n
     The  concept  of regulation of fundamental\t rights\t was
\nborrowed  and extracted by the Additional Solicitor  General
\nfrom American decisions. In Citizen Publishing Co. v. United
\nStates(1)  the\tpower  of the  Government  to  regulate\t the
\nnewspaper industry through the provisions of the Sherman Act
\nwas  recognised.  In that case the Court affirmed  a  decree
\nrequiring  the\tseparation  of\ttwo  potentially   competing
\nnewspapers. The two newspapers entered into an agreement  to
\nend  business or commercial competition between them.  Three
\ntypes of control were imposed by the agreement. One was with
\nregard to price fixation. The second was profit pooling. The
\nthird was market control. The Government complained that the
\nagreement was an unreasonable restraint on trade or commerce
\nin  violation of Sherman Act. The Citizen Publishing  Co.(1)
\ncase  (supra) held that the First Amendment in the  American
\nConstitution  far  from providing an  argument\tagainst\t the
\napplication   of  the  Sherman\tAct  under  the\t  facts\t  of
\nthe  case  provided  strong reasons  to\t the  contrary.\t The
\nAmerican decision   rested  upon  the  assumption  that\t the
\nwidest\tpossible dissemination of information  from  diverse
\nand antagonistic sources is essential to the welfare of the,
\npublic. The Sherman Act was invoked in that case to  prevent
\nnon-governmental   combinations\t which\ttended\t to   impose
\nrestraints  upon  constitutional guarantee of  freedom.\t The
\nregulation of business is one thing. The American case is an
\ninstance  of  the  power  of  the  Government  to   regulate
\nnewspaper industry.\n<\/p>\n
\t  The\tother\tAmerican  decision  on\t which\t the
\nAdditional  Solicitor  General relied is  United  States  v.
\nO’Brien\t (supra). In O’Brien’s case (supra) the\t Court\theld
\nthat one who had burnt one’s selective service\tregistration
\ncertificate did so in violation of a federal statute   making
\nthe knowing destruction or mutilation of such a\t certificate
\na  criminal  offence.  It was contended\t in  O’Brien’s\tcase
\n(supra) that whenever the person engaging in the conduct  of
\nburning\t the certificate intends thereby to express an\tidea
\nthe  idea  of both “speech” and “non-speech”  elements\twere
\ncombined to the same course
\n     (1) [1969] 304 U.S. 131-22L.Ed.2d. 148
\n     15-L499Sup.C. 1.\/73
\n784<\/span>
\nof  conduct.   It was held that there  was-  a\tsufficiently
\nimportant governmental interest in regulating the non-speech
\nelement.   The\tCourt  noticed there  that  such  incidental
\nlimitation on First Amendment freedom was justified  because
\nan  important  and  substantial\t governmental  interest\t was
\ninvolved.   The\t Governmental  interest\t was  found  to\t  be
\nunrelated to the suppression of free expression and that the
\nincidental  restriction\t on  any  First\t Amendment  freedoms
\ninvolved  was  no greater than absolutely essential  in\t the
\nfurtherance of the governmental interest.
\nThese  American decisions establish that a government  regu-
\nlation is justified in America as an important or  essential
\ngovernment interest which is unrelated to the suppression of
\nfree expression.  This Court has established freedom of\t the
\npress to speak and express.  That freedom cannot be abridged
\nand taken away by the manner the impugned policy has done.
\nAt this stage it is necessary to appreciate the petitioners’
\ncontentions  that the newsprint policy of  1972-73  violates
\nArticles 19 (1)(a) and 14 of the Constitution.
\nThe  first  grievance  is about Remark V  in  the  newsprint
\npolicy.\t ‘Remark V deals with dailies which are not above 10
\npages  and  dailies over 10 pages.  With regard\t to  dailies
\nwhich  are  not\t above\t10 pages  the  policy  is  that\t the
\ncomputation  of entitlement to newsprint is on the basis  of
\nthe  actual  newsprint\tconsumption in\t1970-71\t or  1971-72
\nwhichever  is  less.  The average circulation,\tthe  average
\nnumber of pages and the average page area actually published
\nare  all taken into consideration.  The petitioners  and  in
\nparticular the Bennett Coleman Group illustrated the vice of
\nthis feature in Remark V by referring to their\tpublications
\nMaharashtra Times, Nav Bharat Times and Economic Times.\t The
\naverage\t circulation of these three publications in  1971-72
\nwas higher than the average circulation in 1970-71.  It\t is,
\ntherefore,  said  that\tRemark V which shows  the  basis  of
\nconsumption  to be the lesser of the two years\twill  affect
\ntheir  quota.  The Government version is that the figure  of
\nconsumption in 1971-72 did not represent a realistic picture
\nbecause\t of three principal events during that year.   These
\nwere the Bangladesh Crisis, the Indo-Pak War in 1971 and the
\nElections.   The petitioners say that the quota for  1971-72
\nwas  determined\t in  April  1971  which\t was  prior  to\t the
\noccurrence of all the three events.  Again, in the past when
\nthere was the Sino Indian Conflict in 1962 and the  Indo-Pak
\nWar  in 1965 the performance of the newspapers\tduring.\t the
\nyears preceding those events was not ignored as was done  in
\nthe impugned policy for 1972-73.  With regard to  elections,
\nthe  petitioners  say that a separate additional  quota\t has
\nbeen  given.   In the policies prior to 1971-72\t the  growth
\nachieved  in  circulation as a result of the  grant  of\t the
\nadditional quota
\n785<\/span>
\nfor  elections was taken into consideration  in\t determining
\nthe   quota  for  the  following  year.\t  The\tPetitioners,
\ntherefore,  contend that the policy in Remark V\t instead  of
\nincreasing  circulation\t win  result  in  the  reduction  of
\ncirculation.  The petitioners are, in our judgment, right in
\ntheir submission that this policy negatives the claim of the
\nGovernment that this policy is based on circulation.
\nWith  regard to dailies over 10 pages Remark V\tproceeds  on
\nthe calculation of the basic entitlement to be on an average
\nof 10 pages and either the average circulation in 1970-71 or
\nthe  admissible\t circulation in terms of  1971-72  Newsprint
\nPolicy\tplus  increases admissible in terms  of\t Remark\t VII
\nwhichever is more.  The Bennett Coleman Group contends\tthat
\nthe Times of India Bombay, the Times of India Delhi and\t the
\nTimes  of India Ahmedabad had 13.13, 13.99 and 17.83 as\t the
\naverage\t number of pages in 1971-72.  The average number  of
\npages  in 1972-73 under Remark V of the Policy is  fixed  at\n<\/p>\n
10.  Therefore, the percentage of cut in pages is 23.8, 28.4
\nand  43.8 per cent respectively with regard to\tthese  three
\npapers.\n<\/p>\n
The dominant direction in the newsprint policy\tparticularly
\nin  Remarks V and VIII is that the page limit of  newspapers
\nis fixed at 10.\t The petitioners who had been operating on a
\npage  level  of\t over  10  challenge  this  feature  as\t  an
\ninfringement of the freedom of speech and expression.
\nRemark V is therefore impeached first on the ground of fixa-
\ntion  of  10  page  ceiling and secondly  on  the  basis  of
\nallotment of quota.\n<\/p>\n
Prior to 1972-73 newspapers which had started before 1961-62
\nwere allowed to increase pages by reducing circulation.\t  On
\nthe  other hand newspapers which started after\t1961-62\t did
\nnot  have  sufficient quantity of newsprint  for  increasing
\ncirculation  and could not increase pages.  To. remedy\tthis
\nsituation   the\t Government  case  is  that  the   impeached
\nnewsprint  Policy  of  1972-73 provided\t in  Remark  V\tfor-
\nnewspapers operating on a page level of 10 or less quota  on
\nan average page number and actual circulation of 1970-71  or
\n1971-72\t whichever is less and 20% increase  for  increasing
\npage  number  subject  to ceiling of 10\t pages.\t  The  other
\nprovision  in  Remark  V for quota  relating  to  newspapers
\noperating above 10 page level is an, average circulation  of
\n1970-71 and admissible circulation in 1971-72 plus increases
\nadmissible   whichever\tis  more.   Thus  in  the  case\t  of
\nnewspapers  operating  on  10 or less  than  10\t page  level
\nadditional  quota has been given to increase their pages  to\n<\/p>\n
10.  But  the imposition of 10 page  ceiling  on  newspapers
\noperating  on  a  page level above 10  is  said\t to  violate
\nArticles 19(1)(a) and 14.\n<\/p>\n
786<\/span><\/p>\n
The  Government\t advances these six reasons  in\t support  of
\ntheir  policy.\t First,\t there\tis  shortage  of  newsprint.
\nSecond, the average page number of big dailies is 10.3.\t Out
\nof 45 big dailies 23 operate on a page level of less than 10
\nand 22 operate on a page level of more than 10.\t  Therefore,
\nthe Government says that the average of all dailies is\t5.8.
\nThirdly, the Government says that the 45 big dailies with  a
\ncirculation of 46.74 lakhs get about 1,16,700 metric tonnes.
\nThis  is about 59.9 per cent of the total  allocation.\t The
\n346  medium  and small dailies with a circulation  of  41.60
\nlakhs  get  about 74,300. metric tonnes which  represent  as
\n40.1 per cent of the total allocation.\tFourthly it is\tsaid
\nthat  the feature is to remedy the situation arising out  of
\nhistorical  reasons.  Fifthly, the Government says that\t the
\nreduction in allotment is marginal.  By way of\tillustration
\nit is said that the Bennett Coleman group gets 828.79 metric
\ntonnes\tless.  Sixthly, it is said that 500 dailies  applied
\nfor quota.  Newprint has to be equitably rationed.  Allowing
\nsome dailies more than 10 pages will adversely effect  those
\ndailies with less than 10 pages.\n<\/p>\n
In  our view shortage of newsprint can stop with  allotment.
\nIf  the Government rests content with granting consumers  of
\nnewsprint  a  quantity equitably and fairly,  the  consumers
\nwill  not  quarrel  with  the  policy.\t The  consumers\t  of
\nnewsprint are gravely concerned with the other features.
\nThe fixation of 1 0 page limit is said by the Government  to
\nbe  on\taccount of short supply of newsprint  and  equitable
\ndistribution of newsprint.  In the year 1972-73 the quantity
\navailable  for\tallocation  was\t 2,15,000  tonnes.   In\t the
\nprevious  year\tthe  quantity  was  2,25,000  tonnes.\t The
\nshortfall  is 10,000 tonnes.  The percentage therefore\twill
\nbe 10,00OX100=4-1\/2%\n<\/p>\n
   ———-\n<\/p>\n
    2,25,000
\nIf  the\t reduction is only 4-1\/2% the cut in the  Hindu\t was
\ncalculate  ‘by Mr. Nambiar to be 16-10=6  viz.\t6X100=37-1\/2
\nper cent.\t\t\t\t\t —–\n<\/p>\n
\t\t\t\t\t\t   16<\/span><\/p>\n
In   other  words,  the\t cut  worked  out  to  much   higher
\nproportion.   Mr. Palkhivala for the Bennett Coleman  group,
\nMr.  Daphtary for the Hindustan Times group  contended\tthat
\nthere  was no shortage in quantity of newsprint.  It is\t not
\npossible  to  go  into\tthese  disputes\t of  figures.\t The
\nreduction   is\t established   by   Mr.\t  Nambiar   to\t  be
\ndisproportionate to shortfall.\tParticularly in the past, in
\nthe  year  1962 there was a shortage.  There was  a  cut  in
\nquota.\tThe original cut was 5 per cent on those whose quota
\nwas above 100 tonnes but less than 1000 tonnes and 7-1\/2 per
\n787<\/span>
\ncent  for  those  whose quota was  1000\t tonnes\t and  above.
\nLater,\tthe  cut was reduced to 2-1\/2 per cent\tand  applied
\nuniformly  to those whose quota was 1000 tonnes\t and  above.
\nOn  behalf  of the petitioners it was rightly said  that  if
\nthere  was any real shortage 20 per cent increase  in  pages
\nunder  Remark VII(C) to newspaper below 10 page level  would
\nnot have been possible.\n<\/p>\n
According  to the petitioners, there is no distinction\tmade
\nby  the\t Government between dailies in Indian  language\t and
\nEnglish dailies and particularly big English dailies.  A big
\ndaily, according to the Government, is taken to mean a daily
\nwith  a circulation of more than 50,000 copies\tirrespective
\nof  the number of pages and it makes no distinction  between
\nlanguage and English dailies.  Out of the 45 big dailies  30
\nare  language  dailies and 15 are English dailies.   The  15  pB`=
\nEnglish dailies operate on an average page level of over 10.
\nThe  average  of their page level has been  about  13.\t The
\nmedium\tEnglish\t dailies have had an average page  level  of
\nabove  11.  Of\tthe 30 language dailies\t 23  operate  on  an
\naverage page level below.  The language dailies, it is\tsaid
\nby  the petitioners, operate on an average page level  below
\n10  as they do not require more than 10 pages.\tThe  average
\nof the page level of language dailies is about 8. Six of the
\nbig  language  dailies\thave a page level of  about  9.\t The
\npetitioners,  therefore, contend that if the maximum  number
\nof  pages is fixed at 10 the average page level of  the\t big
\nEnglish\t and  language dailies would come down\tto  9.8\t and
\ntheir page level would become more or less equal to the page
\nlevel  of medium dailies whose requirements are\t much  less.
\nIt would, therefore, in our view amount to treating unequals
\nequally\t and  to benefit one type of daily at  the  cost  of
\nanother.\n<\/p>\n
Since 1957, dailies operating on a page level of 12 or\tmore
\nhave  not been given any increase in page level.  There\t was
\nno  fixed number of pages.  For determining quota  the\tpage
\nlevel of 1957 was taken.  Dailies operating on a page  level
\nof  less  than 10 have been granted increase in\t pages\tfrom
\ntime  to  time.\t Such dailies operating on a page  level  of
\nless than 10 have chosen to increase circulation rather than
\nto  increase  the  number  of  pages,  because\tof  lack  of
\nadvertisement  support.\t  From 1963-64\tupto  and  including
\n1971-72 any quota for increase in pages could always be used
\nfor or adjusted against increase in circulation.   Similarly
\nany quota for increase in circulation, could be used for  or
\nadjusted  against increase in number of pages.\tIt  is\tonly
\nbecause the newspapers were allowed to adjust between  pages
\nand  circulation  in the past that the big dailies’  had  an
\nactual page level of more than the permissible page level of
\n1957.  But most of the big language dailies which had a page
\nlevel  of less than 10 did not increase their  pages  though
\nthey were permitted to do so.\n<\/p>\n
788<\/span><\/p>\n
In the past, newspapers which had 12 page limit were allowed
\nto  increase  the  page\t number.  This is  said\t to  be\t the
\njustification on the part of the Government to wipe out\t any
\ninequity.  It appears that 19 language dailies reduced their
\npage numbers on the basis of which their quota was fixed  in
\norder  to increase their circulation.  If that is so,  there
\nis no reason for giving them additional quota for increasing
\npage  number  specially\t by reducing the quota\tof  the\t big
\ndailies\t and imposing a 10 page limit on them.\tIt  is\talso
\nfound  that 11 newspapers whose, quota was calculated  on  a
\npage level above 10 have reduced their page numbers below 10
\nin  order to increase circulation.  These papers  have\talso
\nbeen  granted additional quota to increase their pages\tupto\n<\/p>\n
10.   The Government Annexure R-4 establishes that these  11
\nnewspapers are obtaining double benefit.  First, because  of
\nquota calculated on a page level above 10 and second because
\nof  additional quota to increase pages upto 10 for they\t had
\nactually reduced their page number to 10.\n<\/p>\n
There  are  only 7 dailies of above 12 pages until  the\t im-
\npugned\tpolicy hit these.  Those are Amrita  Bazar  Patrike,
\nBombay\tSamachar.   Hindu, Hindustan Times,  Indian  Express
\n(Delhi, Bombay, Madurai, Vijayawada and Bangalore editions),
\nthe  Times  of\tIndia (Bombay and Delhi\t editions)  and\t the
\nStatesman.   Out of these 7 dailies 6 are  English  dailies.
\nBombay Samachar is a Gujarati daily.  The maximum page level
\nfixed  at 10 and the prohibition against  the  adjustability
\nbetween pages and circulation are strongly impeached by\t the
\npetitioners.   These  7 dailies except Bombay  Samachar\t are
\ncommon ownership units.\t Some of them publish other  leading
\nlanguage  dailies also.\t The maximum number of pages  at  10
\nwill,  according  to  the petitioners,\tnot  only  adversely
\naffect their profits but also deprive them of expressing and
\npublishing  the\t quality of writings and fulfilment  of\t the
\nrole  to  be  played by the newspaper  in  regard  to  their
\nfreedom of speech and expression.  While it must be admitted
\nthat  the  language dailies should be allowed to  grow,\t the
\nEnglish\t dailies  should not be forced to languish  under  a
\npolicy\tof regimentation.  It is therefore correct that\t the
\ncompulsory  reduction to 10 pages offends  article  19(1)(a)
\nand   infringes\t the  rights  of  freedom  of\tspeech\t and
\nexpression.\n<\/p>\n
It is further urged that the Government has fixed the  quota
\non  the\t basis\tof circulation\tmultiplied  by\tpages.\t The
\nGovernment  has on the one hand compared the circulation  of
\nthe  big  dailies with the circulation of medium  and  small
\ndailies\t and on the other has ignored the difference in\t the
\nnumber of pages of big dailies as compared to the number  of
\npages  of the medium and the small dailies.  The  difference
\nin pages coupled with the
\n789<\/span>
\ndifference in circulation affords a reason for difference in
\nthe percentage of total allocation given to the big  dailies
\nas  compared  to  the medium and  the  small  dailies.\t_The
\naverage number of pages for the big dailies is 10.3, for the
\nmedium\t‘dailies  8.3, and for the small  dailies  4.4\t(See
\nPress in India 1971 page 134).\tThe percentage of allocation
\nfor  the  big dailies reflects really the  large  number  of
\npages they publish.  The big dailies therefore have not only
\nlarger requirements but also they render larger services  to
\nthe  readers.  The Newprint Policy of fixing the page  level
\nat 10 is seeking to make unequals equal and also to  benefit
\none type of daily at the expense of another.
\nThe historical reason given by the Government for fixing the
\nmaximum\t number\t of pages at 10 is that the  effect  of\t the
\npolicy\ton  allowing  any  page\t increase  and\t circulation
\nincrease  from time to time has been to help the  growth  of
\nthe  Press.   This  is\thow  newspapers\t like  Ananda  Bazar
\nPatrika,  Jugantar and Deccan Herald are said to  have\tcome
\nup.  The Government also relies on the recommendation of the
\nnewspaper  proprietors in the year 1971 that 8 pages  should
\nbe considered the national minimum requirement for medium of
\ninformation.   The  big English dailies had  the  number  of
\npages  over  12 in 1957.  Because of  adjustability  between
\npages  and circulation they had an actual page\tlevel  which
\nwas  higher  than the permissible page level of\t 1957.\t The
\npetitioners  say  that this has not impeded  the  growth  of
\nother  papers.\tThe policy prescribed by the  Government  of
\nfixing\tthe  maximum page limit at 10 is  described  by\t the
\npetitioners  to\t hit  the big dailies  and  to\tprevent\t the
\nnewspapers  from rising above mediocrity.  It is  true\tthat
\nthe  Government relied on an historical reason.\t It is\tsaid
\nto prevent big newspapers from getting any unfair  advantage
\nover newspapers which are infant in origin.  It is also said
\nthat  the Government policy is to help newspapers  operating
\nbelow  10 pages to attain equal position with those who\t are
\noperating  above 10 page level.\t But this intention to\thelp
\nnew  and young newspapers cannot be allowed  to\t strangulate
\nthe freedom of speech and expression of the big dailies.
\nThe  Government has sought to justify the reduction  in\t the
\npage  level  to\t 10 not only on the ground  of\tshortage  of
\nnewsprint  but\talso on the grounds that these\tbig  dailies
\ndevote\thigh  percentage  of  space  to\t advertisements\t and
\ntherefore the cut in pages will not be felt by them if\tthey
\nadjusted  their\t advertisement space.  In our  judgment\t the
\npolicy of the Government to limit all papers
\n790<\/span>
\nat  10\tpages is arbitrary.  It tends to treat\tunequals  as
\nequals\tand  discriminates against those who  by  virtue  of
\ntheir efficiency, standard and service and because of  their
\nAll-India stature acquired a higher page level in 1957.\t The
\nmain   source\tof  income  for\t the  newspapers   is\tfrom
\nadvertisements.\t  The loss of revenue because of the cut  in
\npage level is said to be over several lakhs of rupees.\tEven
\nif  there is a saving in raw material by cut in\t page  level
\nthere would be a revenue gap of a large sum of money.\tThis
\ngap  could have been partly recouped by increasing the\tpage
\nlevel.\t  The\tnewspaper   has\t  a   built-in\t  mechanism.
\nAdvertisements are not only the sources of revenue but\talso
\none  of\t the factors for circulation.  Once  circulation  is
\nlost it will be very difficult to regain the old level.\t The
\nadvertisement rate has undergone slight increase since 1972.
\nAs  a  result of the cut in page level the area\t for  adver-
\ntisements is also reduced.\n<\/p>\n
This  Court held in Hamdard Dawakhana case (supra)  that  an
\nadvertisement  is  no doubt a form of speech  but  its\ttrue
\ncharacter  is reflected by the object for the  promotion  of
\nwhich  it  is employed.\t In Sakal Papers case  (Supra)\tthis
\nCourt  held that if the space for advertisement\t is  reduced
\nearnings would decline and if the price is raised that would
\naffect\tcirculation.  It appears to us that in\tthe  present
\ncase,  ‘fixation  of page limit will not  only\tdeprive\t the
\npetitioners  of their economic viability but  also  restrict
\nthe  freedom of expression by reason of the  compulsive\t re-
\nduction of page level entailing reduction of circulation and
\ndenuding the area of coverage for news and views.
\nThe estimated loss on account of reduction of page limit  is
\nRs.  39 lakhs in the case of Bennett Coleman group,  Rs.  44
\nlakhs in the case of Hindustan Times and Rs. 38 lakhs in the
\ncase of the Hindu.  If as a result of reduction in pages the
\nnewspapers  will have to depend on advertisements  as  their
\nmain source of income, they will be denied dissemination  of
\nnews  and  views.   That will also  deprive  them  of  their
\nfreedom of speech and expression.  On the other hand, if  as
\na  result  of restriction on page limit the  newspaper\twill
\nhave  to sacrifice advertisements ‘and thus weaken the\tlink
\nof  financial strength, the organisation may  crumble.\t The
\nloss on advertisements may not only entail the closing\tdown
\nbut also affect the circulation and thereby impinge on free-
\ndom of speech and expression.\n<\/p>\n
The  reason given by the Government that the entitlement  on
\nthe  basic of the previous year has caused only\t a  marginal
\nloss in’ allotment is controverted by the petitioners. it is
\nsaid  that if the total quantity of newsprint  available  is
\n2,15,000  tonnes  in 1972-73 the shortfall  is\tonly  10,000
\ntonnes\tbecause in the previous year the quantity  available
\nwas 2,25,000 tonnes.  The Bennett Coleman group alleges that
\nthe actual circulation of Times of India Bombay
\n791<\/span>
\nin 1971-72 was of 1,58,700 copies though the quota for\tthat
\nyear  was  calculated  on  the basis  of  a  circulation  of
\n2,02,825  copies  and a page level of 13  and  adjustability
\nbetween\t paces\tand circulation were  permissible.   It\t is,
\ntherefore,  said  that though the Times of India  under\t the
\nimpeached  policy  would have an  allowable  circulation  of
\n2,08,920  and a page level of 10 it would not under the\t new
\npolicy have any permission to adjust between pages and\tcir-
\nculation.  In fact, it is said that if the pages are reduced
\nto  10, its circulation would fall even below that  of\tlast
\nyear by reason of the fact that owing to reduction in  pages
\nthe quality will suffer and the consequence will be downfall
\nin circulation.\t The petitioners therefore rightly emphasise
\nthat to equate the big English dailies which are in a  class
\nby  themselves\twith other dailies which need less  than  10
\npages  indicates negation of an equitable  distribution\t and
\nproves irrational treating of dailies.\n<\/p>\n
The  justification  pleaded by the Government  is  that\t big
\ndailies chose. to increase pages rather than circulation  in
\nthe past.  In the past the newsprint allocation was based on
\nthe page level of 1957 and the circulation figures of  1961-\n<\/p>\n
62.  The Government says that newspapers which started after
\n1961-62 were unable to increase their pages.  Therefore, the
\npresent policy is intended to remove that position.  In\t our
\njudgment  it  will depend on each paper as to  how  it\twill
\ngrow.\tThose  who are growing should not be  restricted  if
\nthey  can  grow\t within their quota.  In  the  past  dailies
\nhaving\tless  than 10 pages were given\tincreases  and\twere
\nallowed to come up to 10 pages from 4 pages in 1961-62 and 6
\npages in 1962-63.  Most of them could not even fully utilize
\nthe  page  increase allowed.  The present  impeached  policy
\nseeks to remove iniquities created by previous policies.  It
\ndepends upon facts as to how much more newsprint a group  of
\nnewspapers  started after 1961-62 will require and  secondly
\nwhether they are in a position to increase the page  number.
\nIt also appears that 19 language dailies reduced their\tpage
\nnumbers\t on the basis of which the quota was  calculated  in
\norder  to  increase  their  circulation.   Therefore,  there
\nappears\t to be no justification for giving  them  additional
\nquota  for increasing page numbers by reducing the quota  of
\nthe  big dailies by imposing upon them the 10 page  ceiling.
\nThe  10\t page ceiling imposed affecting\t 22  big  newspapers
\noperating  above 10 page level with approximate\t circulation
\nof over 23 lakhs i.e. more than 25% of the total circulation
\nis  arbitrary and treats them equally with others  who,\t are
\nunequal\t irrespective of the needs and requirements  of\t the
\nbig   dailies\tand  thus  violates  Article   14   of\t the
\nConstitution.\n<\/p>\n
The  impeached policy violates Article 14 because it  treats
\nnewspapers  which  are not equal equally  in  assessing\t the
\nneeds and requirements of newsprint.  The Government case is
\nthat out of
\n792<\/span>
\n35 newspapers which were operating on a quota calculated  on
\na higher page level than 10 pages 28 newspapers will benefit
\nby the impeached policy of 1972-73.  But 7 newspapers out of
\n22 which were operating above 10 page level are placed at  a
\ndisadvantage   by  the\tfixation  of  10  page\t limit\t and
\nentitlement   to   quota  on  that  basis.   There   is\t  no
\nintelligible  differentia.   Nor has  this  distinction\t any
\nrelation  to  equitable\t distribution  of  newsprint.\t The
\nimpeached  policy  also offends Article 19 (1)\t(a)  of\t the
\nConstitution.\tNewspapers like 19 language dailies  reduced
\ntheir  pages  in order to increase circulation\tthough\tsuch
\nlanguage  dailies had prior to 1972-73 been given  quota  to
\nincrease  pages.  Under the impeached policy these  language
\ndailies\t are given additional quota to increase their  pages
\nagainst to 10.\n<\/p>\n
The  basic entitlement in Remark V to quota  for  newspapers
\noperating  above  10 page level\t violates  Article  19(1)(a)
\nbecause the quota is hedged in by direction not to  increase
\nthe page number above 10.  The reduction of page limit to 10
\nfor  the aforesaid reasons violates Article 19 (1)  (a)\t and
\nArticle 14 of the Constitution.\n<\/p>\n
The other features in the newsprint policy complained of are
\nthose  in  Remark  VII\t(c) read with  Remark  VIII  of\t the
\nimpeached  policy.   Remark  VII  (c)  allows  20  per\tcent
\nincrease  to daily newspapers in the number of pages  within
\nthe ceiling of 10 over the average number of pages on  which
\nthe  basic  entitlement is fixed under Remark  V.  In  other
\nwords,\tdailies with less than 10 pages are  prevented\tfrom
\nadjusting the quota for 20 per cent increase for increase in
\ncirculation.  The Bennett Coleman group says that their\t Nav
\nBharat\tTimes,\tMaharashtra Times and Economic\tTimes  would
\nprefer\tto increase their circulation.\tUnder Remark V\tthey
\nare entitled to quota on the basis of consumption in 1970-71
\nor  1971-72 whichever is less.\tThis feature also  indicates
\nthat  the  newsprint  policy is not  based  on\tcirculation.
\nUnder Remark VII (c) these newspapers within the ceiling  of
\n10  can\t get 20 per cent increase in the  number  of  pages.
\nThey  require  circulation more than the  number  of  pages.
\nThey are denied circulation as a result of this policy._ The
\nbig  English dailies which need to increase their pages\t are
\nnot  permitted\tto do so.  Other dailies which do  not\tneed
\nincrease in pages are permitted quota for increase but\tthey
\nare  denied the right of circulation.  In, our\tview,  these
\nfeatures were rightly said by counsel for the petitioners to
\nbe not newsprint control but newspaper control in the  guise
\nof  equitable distribution of newsprint.  The object of\t the
\nimpeached  policy  is  on  the one  hand  said\tto  increase
\ncirculation and on the other to provide for growth in  pages
\nfor others.  Freedom of speech and expression is not only in
\nthe volume of circulation but also in the volume of news and
\nviews.\n<\/p>\n
793<\/span><\/p>\n
Remark\tVIII in the Newsprint Policy of 1972-73 imposes\t two
\ntypes  of restrictions.\t First a daily is not  permitted  to
\nincrease its number of pages by reducing circulation to meet
\nits individual requirements.  Secondly, dailies belonging to
\na common ownership unit are not permitted interchangeability
\nbetween\t them  of the quota allotted to each even  when\t the
\npublications  are  different  editions\tof  the\t same  daily
\npublished from different places.\n<\/p>\n
The  first  prohibition in Remark VIII against\tincrease  in
\npages,\tby reducing circulation has been introduced for\t the
\nfirst  time in the policy for 1972-73.\tThe reason given  by
\nthe  Government\t for this feature is that  newspapers  would
\nobtain a quota on the basis, of a certain stated circulation
\nand they should not be allowed to, reduce circulation.\t The
\npetitioners  say that quota is not granted on the  basis  of
\nactual\tcirculation but is granted on the basis of  notional
\ncirculation  which means the actual circulation\t of  1961-62
\nwith  permissible increases year after year even though\t the
\nactual\tcirculation does not correspond to  the\t permissible
\ncirculation  on which the quota was based year\tafter  year.
\nThe  Times of India Bombay in 1971-72 demanded quota on\t the
\nbasis of 20 pages and a circulation of 1,70,000.  ‘the Times
\nof India was, allowed quota on the basis of 13.13 pages\t and
\na  circulation\tof  2,02,817.  The  actual  performance\t was
\naverage\t page number of 18.25 and circulation  of  1,54,904.
\nIn the past, adjustability between pages and circulation was
\npermitted.   In our judgment, the petitioners correctly\t say
\nthat  the individual requirements of the  different  dailies
\nrender it eminently desirable in some cases to increase\t the
\nnumber\tof  pages  than\t circulation.\tSuch  adjustment  is
\nnecessary  to  maintain\t the quality and the  range  of\t the
\nreaders\t in  question.\tThe denial of  this  flexibility  or
\nadjustment  is\tin  our\t view rightly  said  to\t hamper\t the
\nquality, range and standard of the dailies and to affect the
\nfreedom of the press.\n<\/p>\n
The  restriction on the petitioners that they can use  their
\nquota,\tto  increase  circulation but not  the\tpage  number
\nviolates  Articles  19\t(1) (a) as  also  Article  14.\t Big
\ndailies are treated to be equal with newspapers who are\t not
\nequal to them.\tAgain, the policy of 1972-73 permits dailies
\nwith  large  circulation  to  increase\ttheir\tcirculation.
\nDailies\t operating below 10 page level are allowed  increase
\nin  pages.   This page increase quota cannot  be  used\tfor-
\ncirculation  increase.\t Previously, the  big  dailies\twere
\nallowed\t quota for circulation growth.\tThe  present  policy
\nhas  decreased the quantity for circulation growth.  In\t our
\nview  counsel  for  the petitioners rightly  said  that\t the
\nGovernment could not determine thus which newspapers  should
\ngrow  in  page and circulation and which  newspapers  should
\ngrow only in circulation and not in pages.  Freedom of press
\nentitles  newspapers to achieve any volume  of\tcirculation.
\nThough\trequirements of newspapers as to  page,\t circulation
\nare both taken into consideration for fixing their quota
\n794<\/span>
\nbut the newspapers should be thereafter left free to  adjust
\ntheir page number and circulation as they wish in accordance
\nwith the dictates of Article 19 (1)(a) of the Constitution.
\nCounsel\t for  the  petitioners\tcontended  that\t the  second
\nprohibition in Remark VIII in the Newsprint Policy prevented
\ncommon\townership  units  from adjusting  between  them\t the
\nnewsprint  quota allotted to each of them.  The\t prohibition
\nis to use the newsprint quota of one newspaper belonging  to
\na  common ownership unit for another newspaper belonging  to
\nthat  unit.  On behalf of the petitioners it was  said\tthat
\nfrom 1963-64 till 1966-67 inter,changeability was  permitted
\nbetween\t different editions of the same publication  to\t the
\nextent\tof  20 per cent.  In 1967-68  and  1968-69  complete
\ninterchangeability  between different editions of  the\tsame
\nnewspaper  and between different newspapers and\t periodicals
\nwas permitted.\tIn 1969-70 and 1970-71 the total entitlement
\nwas give” as an aggregate quota, though there was a separate
\ncalculation  made  for each newspaper.\tThe  present  policy
\ndoes  not permit interchangeability.  Interchangeability  by
\nusing the quota for a new newspaper or a new edition or\t for
\nanother newspaper of the same unit will put common ownership
\nunit in an advantageous position.  Newsprint is allotted  to
\neach  news;  paper.  The newspaper is considered to  be\t the
\nrecipient.   A\tsingle\tnewspaper  will\t suffer\t if   common
\nownership  units  are allowed to adjust quota  within  their
\ngroup.\n<\/p>\n
The petitioners impeach Remark X in the Newsprint Policy for
\n1971-72\t on the ground that a common ownership\tunit  cannot
\nbring  out  a  new newspaper or start a new  edition  of  an
\nexisting newspaper even from their allotted quota.   Counsel
\non  behalf  of the petitioners\trightly\t characterized\tthis
\nfeature as irrational and irrelevant to the availability  of
\nnewsprint.   By\t way of illustration it was  said  that\t the
\nEconomic Times is sent by air to Calcutta and Delhi but\t the
\ncommon ownership unit is not permitted to reduce the  number
\nof  copies  printed at Bombay and print copies\tout  of\t the
\nauthorised  quota  for circulation at  Calcutta\t and  Delhi.
\nSimilarly,  it was said that there was no reason to  support
\nthe  policy in Remark X preventing a common  ownership\tunit
\nfrom publishing a new daily though a person who brought\t out
\none  daily  was allowed to start a second daily.   This\t was
\nchallenged  as discriminatory.\tIt is an abridgment  of\t the
\nfreedom\t of  expression to prevent a common  ownership\tunit
\nfrom  starting a new edition or a new newspaper.   A  common
\nownership unit should be free to start a new edition out  of
\ntheir  allotted\t quota and it would be logical to  say\tthat
\nsuch a unit can use its allotted quota for changing the page
\nstructure and circulation of different editions of the\tsame
\npaper.\tIt is made clear that newspapers cannot be permitted
\nto  use\t allotted  quota  for  starting\t a  new\t  newspaper.
\nNewspapers will
\n795<\/span>
\nhave to make necessary application for allotment of quota in
\nthat behalf.  It will be open to the appropriate authorities
\nto deal with, the application in accordance with law.
\nUntil 1968-69 big dailies were treated alike but  thereafter
\nfrom  1970-71 onwards dailies with circulation of more\tthan
\n1,00,000  copies have been put in a different  category\t and
\ngiven  a  lesser increase than those with a  circulation  of
\n50,000 to 1,00,000 copies though both are big dailies.\t The
\npolicy of the Government is to level all papers at 10 pages.
\nIt  tends  to treat unequals. as equals.   It  discriminates
\nagainst\t those\twho by virtue of their standing\t status\t and
\nservice\t on all India basis acquired a higher page level  in
\nthe past.  The discrimination is apparent from Remark VII in
\nthe  newsprint Policy for 1972-73 by which  newspapers\twith
\nless than 1,00,000 circulation have been given 10%  increase
\nin  circulation\t whereas  those\t with  more  than   1,00,000
\ncirculation have been given only 3% increase in circulation.
\nMr. Palkhivala said the policy worked admirably in the\tpast
\nbecause\t adjustability\tbetween pages  and  circulation\t was
\npermitted.   In our view the Newsprint Control has now\tbeen
\nsubverted  to newspaper control.  The growth of\t circulation
\ndoes  not mean that there should not be growth in pages.   A
\nnewspaper  “expands  with the news and views.\tA  newspaper
\nreaches\t different  sections.\tIt has to  be  left  to\t the
\nnewspapers  as to how they will adjust their newsprint.\t  At
\none  stage the Additional Solicitor General said that  if  a
\ncertain quantity of steel was allotted the Government  could
\ninsist as to how it was going to be used.  It was said\tthat
\nthe output could be controlled.\t In our view, newsprint does
\nnot  stand on the same footing as steel.  It has  been\tsaid
\nthat freedom of the press is indispensable to proper working
\nof  popular Government.\t Patna jali Sastri, J. speaking\t for
\nthis Court in Ramesh Thappar’s case (supra) said that “Thus,
\nevery\tnarrow\tand  stringent\tlimits\thave  been  set\t  to
\npermissible  legislative  abridgment of the  right  of\tfree
\nspeech\tand  expression, and this was doubtless due  to\t the
\nrealisation  that freedom of speech and of the press lay  at
\nthe  foundation of all democratic Organization, for  without
\nfree political discussion no public education, so  essential
\nfor  the  proper  functioning of the  processes\t of  popular
\nGovernment,  is\t possible”.  It is appropriate to  refer  to
\nwhat William Blackstone said in his commentaries :\n<\/p>\n
\t      “Every  free man has a undoubted right to\t lay
\n\t      what sentiments he pleases before the  public;
\n\t      to  forbid this is to destroy the\t freedom  of
\n\t      the  press-,  but\t if  he\t publishes  what  is
\n\t      improper, mischievous or illegal, he must take
\n\t      the consequence of his own temerity.”\n<\/p><\/blockquote>\n
796<\/span><\/p>\n
The  faith of a citizen is that political wisdom and  virtue
\nwill sustain themselves in the free market of ideas so\tlong
\nas  the channels of communication are left open.  The  faith
\nin  the popular Government rests on the old dictum “let\t the
\npeople have the truth and the freedom to discuss it and\t all
\nwill go well”.\tThe liberty of the press remains an “Art” of
\nthe Covenant” in every democracy.  Steel will yield products
\nof steel.  Newsprint will manifest whatever is thought of by
\nman.   The  newspapers give ideas. The newspapers  give\t the
\npeople\tthe  freedom  to find out what\tideas  are  correct.
\nTherefore,  the\t freedom of the press is to be\tenriched  by
\nremoving the restrictions on page limit and allowing them to
\nhave  new editions or new papers.  It need not\tbe  stressed
\nthat if the quantity of newsprint available does not  permit
\ngrant of additional quota for new papers that is a different
\nmatter.\t  The  restrictions are to be  removed.\t  Newspapers
\nhave  to  be  left free, to  determine\ttheir  pages,  their
\ncirculation  and  their new editions within their  quota  of
\nwhat has been fixed fairly.\n<\/p>\n
Clauses\t 3  and 3A of the 1962 Newsprint Order\tprevent\t the
\npetitioners  from using white paper and writing paper.\t The
\nadditional  Solicitor General at one stage said that it\t was
\nopen to any newspaper to an unrestricted use of any form  of
\npaper  so  long as newspapers do not  apply  for  newsprint.
\nThis argument exposes grave errors.  In the first place,  it
\nshows  that there is no shortage’ of white  printing  paper.
\nSecondly,  it will show that there is no  justification\t for
\nrationing of newsprint.\t The cost of indigenous white  paper
\nis  double  the cost of the imported newsprint.\t  This\thigh
\nprice  of  white  printing  paper  is  a  deterrent  to\t any
\nnewspaper  to use it.\t  The periodicals are permitted\t the
\nuse  of white\t printing paper.  That is because of  Public
\nNotice\tNo. 4-ITC(PN)\/63 dated 1 1 January, 1963.  That\t may
\nbe one of the reasons why periodicals have not complained of
\nthe Policy.  The periodicals can supplement their  newsprint
\nquota.\t Further,  the\tclientele  of  the  periodicals\t  is
\ndifferent.   The Prices of periodicals are  also  different.
\nIn any event, it cannot be said that the newspapers can\t buy
\nwhite  printing paper to meet their requirements.   Nor\t can
\nsuch  plea  be\tan answer to the  violation  of\t fundamental
\nrights in Article 19 (1) (a) or infraction of Article 14  by
\nthe provisions of the impeached Newsprint Policy.
\nIn  the present case, it cannot be said that  the  newsprint
\npolicy\tis  a  reasonable restriction within  the  ambit  of
\nArticle\t  19(2).    The\t newsprint   policy   abridges\t the
\nfundamental  rightS of the petitioners in regard to  freedom
\nof  speech and expression.  The newspapers are\tnot  allowed
\ntheir  right of circulation- The newspapers are not  allowed
\nright  of  page\t growth.   The\tcommon\townership  units  of
\nnewspapers cannot bring out newspapers or new editions.\t The
\nnewspapers  operating  above 10 page  level  and  newspapers
\nOperating below 10 page level have been treated equally\t for
\nassessing
\n797<\/span>
\nthe  needs  and requirements of newspapers  with  newspapers
\nwhich  are  not\t their equal, Once the quota  is  fixed\t and
\ndirection to use the quota in accordance with the  newsprint
\npolicy\tis made applicable the big newspapers are  prevented
\nany  increase  in  page\t number.   Both\t page  numbers\t and
\ncirculation are relevant for calculating the basic quota and
\nallowance  for\tincreases.  In the garb of  distribution  of
\nnewsprint  the Government has tended to control\t the  growth
\nand circulation of newspapers.\tFreedom of the press is both
\nqualitative   and  quantitative.   Freedom  lies   both\t  in
\ncirculation  and  in content.  The  newsprint  policy  which
\npermits\t newspapers to increase circulation by reducing\t the
\nnumber\tof pages, page area and periodicity, prohibits\tthem
\nto  increase the number of pages, page area and\t periodicity
\nby  reducing circulation.  These restrictions constrict\t the
\nnewspapers in adjusting their page number and circulation.
\nThe  Additional\t Solicitor General relied  on  the  American
\ndecision in Red Lion Broadcasting Co. v. Federal  Communica-
\ntions  Com. (supra) in support of the contention that  there
\nshould be an uninhibited marketplace of idea in which  truth
\nwill   ultimately   prevail   and  there   should   not\t  be
\nmonopolization\t of  that  market  whether  it\tbe  by\t the
\ngovernment itself or by a private licensee- The press is not
\nexposed\t to any mischief of monopolistic  combination.\t The
\nnewsprint policy is not a measure to combat monopolies.\t The
\nnewsprint policy should allow the newspapers that amount  of
\nfreedom\t of  discussion and information which is  needed  or
\nwill  appropriately  enable the Members of  the\t society  to
\npreserve their political expression of comment not only upon
\npublic\taffairs\t but also upon the vast range of  views\t and
\nmatters needed for free society.\n<\/p>\n
This Court in Sakai Papers case (supra) dealt with  measures
\nempowering the government to regulate allocation of space to
\nbe  allotted for advertising matter.  This Court  held\tthat
\nthe  measure  had  the\tdirect\teffect\tof  curtailing\t the
\ncirculation  of\t the newspaper and thus to be  violation  of
\nArticle 19 (1) (a).  It was said on behalf of the Government
\nthat  regulation of space for advertisement was\t to  prevent
\nunfair\tcompetition.  This Court held that the\tState  could
\nhelp or protect newly started newspapers but there could not
\nbe  an\tabridgment of the right in Article 19(1)(a)  on\t the
\nground of conferring right on the public in general or\tupon
\na section of the public.\n<\/p>\n
The Additional Solicitor General contended that the business
\naspect\tof  the\t press\thad  no\t special  immunity  and\t the
\nincidental  curtailment\t in  the circulation  could  not  be
\nfreedom\t of speech and expression of the press.\t This  Court
\nin Sakai Papers case (supra) dealt with the measures for the
\nfixation of price in relation to pages and the regulation of
\nallotment of space for adver-\n<\/p>\n
798<\/span><\/p>\n
tisement by each paper.\t These measures were said to be com-
\nmercial\t activities  of newspapers.  This  Court  said\tthat
\nrestrictions  could  be\t put upon the freedom  to  carry  on
\nbusiness but the fundamental right of speech and  expression
\ncould  not  be\tabridged  or taken  away.   There  could  be
\nreasonable  restrictions on that right only as\tcontemplated
\nunder Article 19(2).\n<\/p>\n
Mr. Nambiar contended that the Newsprint Policy did not fall
\nwithin\tclause 5(1) of the Import Control Order 1955 and  it
\nwas not validly made by the Central Government.\t The records
\nwith  regard to the making and publication of the  newsprint
\npolicy\tfor  1972-73  were looked into by  this\t Court.\t  It
\nappears that the policy was published under the authority of
\nthe  Cabinet  decision.\t The policy  was  therefore  validly
\nbrought\t into  existence.  The various restrictions  of\t the
\nnewsprint  policy have been examined earlier.\tThe  various
\nrestrictions imposed by the newsprint policy are found to be
\nunconstitutional.\n<\/p>\n
Clause\t3 of the Newsprint Control Order 1962 was  contended
\nto  confer unfettered and unregulated power on an  executive
\nofficer.  Clause (3A) of the Order of 1962 was also said  to
\nconfer naked and arbitrary power.  The disability imposed on
\nnewspapers from using printing and writing paper was said to
\nbe   discriminatory.   The  Additional\t Solicitor   General
\ncontended that it is open to an unrestricted use of any form
\nof  paper so long as newspapers do not apply for  newsprint.
\nThis  would  establish that there is no\t shortage  of  white
\nprinting  paper.  The error in the Government contention  is
\nthereby exposed.  The periodicals were permitted in terms of
\npublic\t Notice\t  4-ITC(PN)\/63\t dated\t 11   January\t1963
\nunrestricted use of white printing paper to supplement their
\nquota  of newsprint.  That again shows that  the  Government
\ncontention is wrong because there is restriction with regard
\nto use of white printing paper.\t The cost of white  printing
\npaper  is high.\t It is said that the cost is Rs.  2,750\t per
\nmetric tonne for white printing paper compared to Rs.  1,274
\nof  imported  newsprint\t and Rs. 1,362\tof  Nepa  newsprint.
\nClause\t3  (3A) of the Order provides that  no\tconsumer  of
\nnewsprint  other than a publisher of text books or books  of
\ngeneral\t interest  shall use any kind of  paper\t other\tthan
\nnewsprint  except  with\t the permission in  writing  of\t the
\nController.   White  printing paper like  newsprint  can  be
\nrationed.  The distribution is to be fair and equitable.  It
\nis necessary also to point out that text books and books  of
\ngeneral interest require facilities for using white printing
\npaper.\t  Such\tmeasures  with\tregard\tto   rationing\t are
\ndefensible.   It is true that no guidelines are to be  found
\nin  clause  3 (3 Al) as to the circumstances under  which  a
\nparticular  consumer of newsprint or class of  consumers  of
\nnewsprint  other than a publisher of text books or books  of
\ngeneral\t interest  should or should not be  allowed  to\t use
\nwhite\tprinting   paper.   The\t  Public   Notice   allowing
\nperiodicals
\n799<\/span>
\npermission  to use white printing paper is  not\t challenged.
\nPeriodicals were not before this Court.\t It is therefore not
\nnecessary to express any opinion on clause 3 (3) and  clause
\n3 (3A) of the Control Order.\n<\/p>\n
For  the foregoing reasons the newsprint policy for  1972-73
\nviolates  Articles  19 (1) (a) and 14 of  the  Constitution.
\nThe  restrictions by fixing 10 page limit in Remarks  V\t and
\nVIII of the policy infringe Articles 19 (1)(a) and 14 of the
\nConstitution  and are therefore,  declared  unconstitutional
\nand  struck down.  The policy of basic entitlement to  quota
\nin Remark V is violative of Articles 19(1)(a) and 14 of\t the
\nConstitution  and is therefore struck down.  The measure  in
\nRemark VII(a) is violative of Articles 14 and 19 (1) (a)  of
\nthe Constitution and is struck down.\n<\/p>\n
The  measures  in Remark VII(C) read with  Remark  VIII\t are
\nviolative  of Articles 19(1)(a) and 14 of  the\tConstitution
\nand  are struck down.  The prohibition in Remark  X  against
\ncommon\t  ownership    unit    from    starting\t   a\t new
\nnewspaper\/periodical   or   a  new   edition   is   declared
\nunconstitutional  and  struck down as violative\t of  Article
\n19(1)(a) of the Constitution.\n<\/p>\n
For  these  reasons  the petitioners  succeed.\t The  import
\npolicy\tfor  newsprint\tfor the year 1972-73  in  regard  to
\nRemarks V, VII(a), VII(c), VIII and X as indicated above  is
\nstruck down.  The parties will pay and bear their own costs.
\nMATHEW, J. These four writ petitions concern the validity of
\nsub-clauses  (3) and (3A) of Cl. 3 of the Newsprint  Control
\nOrder, 1962, passed by the Government of India under S. 3 of
\nthe  Essential Commodities Act, 1955, and the provisions  of
\nthe Newsprint Import Control Policy for 1972-73\t hereinafter
\ncalled the Newsprint Policy”.  The petitioners challenge the
\nvalidity  of  sub-clause  (3)  and (3A) of  Cl.\t 3  of\tthe-
\nNewsprint Control Order and the provisions of the  Newsprint
\nPolicy\ton  the\t ground that they  are\tviolative  of  their
\nfundamental right under Arts. 14 and 19 (1)(a)\t  of\t‘the
\nConstitution.  Newsprint,  which is a  variety\tof  printing
\npaper, is the principal raw material required for newspapers
\nand periodicals.  Until 1957, the newsprint required in\t the
\ncountry\t was being imported.  In or about the year  1957,  a
\nmill called the National New-Sprint and Paper Mills Ltd. was
\nstarted.   This\t mill  is  the\tonly  source  of  supply  of
\nindigenous  newsprint.\tThe newsprint produced in this\tmill
\nis quite inadequate to meet the needs of the country.
\nThe  production,  supply and distribution of  newsprint\t has
\nbeen   controlled  ever\t since\t1939.\tArt.  369   of\t the
\nConstitution  vests  the control of production,\t supply\t and
\ndistribution of newsprint within the exclusive\tjurisdiction
\nof Parliament for a period of five years\n<\/p>\n
-L499Sup.  CI\/73
\n800<\/span>
\nfrom the commencement of the Constitution.  Newsprint is  an
\nessential  commodity’ under the Essential  Commodities\tAct,
\n1955 (see s. 2(a)(vii) of the Act).\n<\/p>\n
The bulk of newsprint has to be imported from foreign  coun-
\ntries and the Central Government has a restricted system  of
\nimport\t from  the  year  1943.\t  The\tCentral\t  Government
\npromulgated  the  Import  (Control)  Order,  1955,  in\t the
\nexercise,  of the powers conferred by sections 3 and  4A  of
\nthe  Imports and Exports (Control) Act, 1947, and  cl.\t3(1)
\nthereof reads as follows :\n<\/p>\n
\t      “3.  Restrictions of Import on certain  goods-
\n\t      (1) Save as otherwise provided in this  Order,
\n\t      no  person  shall\t import\t any  goods  of\t the
\n\t      description  specified in Schedule  1,  except
\n\t      under, and in accordance with, a licence or  a
\n\t      customs clearance permit granted by the entral
\n\t      Government  or  by any  officer  specified  in
\n\t      Schedule II”.\n<\/p><\/blockquote>\n
White printing paper (excluding laid marked paper which con-
\ntains mechanical wood pulp amounting to not less than 70 per
\ncent of the fibre content) is included as item 44 in Part  V
\nof Schedule I to that Order.\n<\/p>\n
Licence\t was granted to publishers of newspapers  till\t1962
\nfor import of newsprint in accordance with the Import  Trade
\nControl policy promulgated from time to time,:
\nOn January 17, 1962, in the exercise of the powers under cl.
\n3  of  the  Essential Commodities  Act,\t 1955,\tthe  Central
\nGovernment  promulgated the newsprint Control  Order,  1962.
\nClause 3 and Schedule I of the Order are as follows
\n“3.  Restrictions  on acquisition, sale and  consumption  of
\nnewsprint :-\n<\/p>\n
\t      (1)   No\tperson other than an importer  shall
\n\t      acquire\tnewsprint   except  under   and\t  in
\n\t      accordance with the terms and conditions of an
\n\t      authorisation  issued by the Controller  under
\n\t      this Order.\n<\/p><\/blockquote>\n
\t       (2)  No dealer in newsprint shall sell to any
\n\t      person newsprint of any description or in\t any
\n\t      quantity\tunless\tthe sale to that  person  of
\n\t      newsprint\t of  that  description\tor  in\tthat
\n\t      quantity is authorised by the Controller.
\n\t      (3)   No\tconsumer of newsprint shall, in\t any
\n\t      licensing period, consume or use newsprint  in
\n\t      excess  of  the  quantity\t authorised  by\t the
\n\t      Controller from time to time.\n<\/p><\/blockquote>\n
 all dailies with a circulation\t of  41.60
\n which\trepresent  aUf
\n KHANNA AND Y. V. CHANDRACHUD, JJ.]
\n801<\/span>
\n\t      SCHEDULE-1\n<\/p>\n
\t      1.    White  printing  paper  (excluding\tlaid
\n\t      marked  paper) with fibre Content of not\tless
\n\t      than 70 per cent mechanical wood pulp.\n<\/p>\n
\t      2.    Glazed newsprint.\n<\/p>\n
\t      3.lndigenous  newsprint manufactured  by\tNEPA
\n\t      mills.”\n<\/p>\n
On  December  29, 1962, the Central Government\tamended\t the
\nsaid Order by promulgating a new sub-clause in cl. 3,  viz.,
\ncl. (3A) which runs as follows :-\n<\/p>\n
\t      “(3A)-No consumer of newsprint, other than  an
\n\t      publisher\t of text books or books\t of  general
\n\t      interest,\t shall use any kind of\tpaper  other
\n\t      than newsprint except with the permission,  in
\n\t      waiting, of the Controller.”\n<\/p><\/blockquote>\n
The  policy  with regard to the import\tand  utilization  of
\nnewsprint  is  enumerated from time to time  in\t the  Import
\nTrade\tControl\t Policy\t (Red  Books).\t The  Registrar\t  of
\nNewspapers,  determines\t the  newsprint\t and  printing\t and
\nwriting\t paper\tentitlement  of publishers of  each  of\t the
\nnewspapers  in accordance with the aforesaid policy and\t the
\nChief Controller of Imports and Exports issues licences\t for
\nimport of newsprint in accordance with the determination  by
\nthe Registrar.\n<\/p>\n
The  imported newsprint together with that produced in\tthe
\ncountry\t has to be rationed among the various newspapers  in
\nthe Country.\n<\/p>\n
In  the year 1972-73, on account of suspension of U.S.\taid,
\nthere  was  a reduction of 11,000 tonnes in  the  import  of
\nnewsprint.    Therefore,   the\t newsprint   available\t for
\ndistribution was less than what it was in 1971-72.
\nThe provisions of the Newsprint Policy which are challenged
\nin these petitions might be summarised as follows\n<\/p>\n
\t      1.    Fixation   of  basic   entitlement\t for
\n\t      newspapers  whose actual number of  pages\t was
\n\t      more than 10 during 1970-71 or 1971-72 on\t the
\n\t      basis of (i) an average of 10 pages, and\t(ii)
\n\t      either  the average circulation in 1970-71  or
\n\t      admissible  circulation  in 1971-72  plus\t in-
\n\t      creases admissible under the Policy of 1971-72
\n\t      whichever is more (Remark V).\n<\/p>\n
\t      2.    (i)\t Reduction in increases from  5\t per
\n\t      cent to 3 percent for dailies with circulation
\n\t      of  more than 1 lakh (Remark VII); and  giving
\n\t      of 20 per cent increase to daily newspapers in
\n\t      the number of
\n\t      802<\/span>
\n\t      pages` within the ceiling of 10 pages provided
\n\t      this increase is not utilised for the increase
\n\t      of circulation (Remarks VII(C) and VIII).\n<\/p>\n
\t      (ii)  Prohibition\t to increase the  number  of
\n\t      pages,  page area and periodicity by  reducing
\n\t      circulation  within the authorised  quota\t but
\n\t      they  are\t permitted to reduce the  number  of
\n\t      pages,   page   area   and   periodicity\t for
\n\t      increasing circulation (Remark VIII).\n<\/p>\n
\t      3. (i)\t Prohibition  to use  the  newsprint
\n\t      quota  of\t one  newspaper\/periodical  for\t the
\n\t      other  newspaper\/\t periodical in the  case  of
\n\t      newspapers\/periodicals  belonging to a  Common
\n\t      Ownership Unit (Remark VIII); and\n<\/p>\n
\t      (ii)  Prohibition\t    to\t  start\t   a\t new
\n\t      newspaper\/periodical  by the Common  Ownership
\n\t      Unit (Remark VIII); and\n<\/p>\n
\t      4.    Denial of newsprint quota to\n<\/p>\n
\t      (i)   an\texisting  newspaper belonging  to  a
\n\t      Common Ownership\tUnit which  has\t not  been
\n\t      granted newsprint quota; and\n<\/p>\n
\t      (ii)  additional\t newspapers   sponsored\t  or
\n\t      acquired by a common Ownership Unit  (Remark-
\n\t      X).\n<\/p>\n
\t      5.    Prohibition to use white printing  paper
\n\t      by  the  newspapers which have  been  allotted
\n\t      newsprint (Cl. 3(3A) of the Newsprint  Control
\n\t      Order).\n<\/p>\n
That  there  can be no unlimited right to acquire or  use  a
\nscarce commodity like newsprint can admit of no doubt.\t The
\nargument  of  the petitioners that  Government\tshould\thave
\naccorded  greater  priority to the import  of  newsprint  to
\nsupply the need of all newspaper proprietors to the  maximum
\nextent is a matter relating to the policy of import and this
\nCourt  cannot  be propelled into the  unchartered  ocean  of
\nGovernmental policy.\n<\/p>\n
Let   me  first\t take  the  general  question  whether\t the
\nprovisions of the Newsprint Policy and the Newsprint Control
\nOrder abridge the freedom of speech.\n<\/p>\n
The  freedom of the press is no higher than the, freedom  of
\nspeech\tof a citizen under Art. 19(1)(a).  Art. 19 does\t not
\nspecifically  provide  for the freedom of the press  as\t the
\nFirst Amendment of the Constitution of the U.S.A. does.\t The
\nfreedom of the press is simply an emanation from the concept
\nof  fundamental\t right\tof the freedom of  speech  of  every
\ncitizen (see Pandit M. S. M. Sharma v.\tShri   Sri   Krishna
\nSinha and Others<\/a>(1).\n<\/p>\n
(1) [1959] Supp.   1 S.C.R. 806.\n<\/p>\n
803<\/span><\/p>\n
The  respondents contended that the Newsprint Control  Order
\nand  the Newsprint Policy are concerned with regulating\t the
\ndistribution of newsprint as a scarce commodity, and, if, in
\nregulating   the   distribution\t of   the   commodity,\t the
\nfundamental  right  of the freedom of speech  is  indirectly
\naffected,  that\t is  not an abridgment\tof  the\t freedom  of
\nspeech,\t but  only  an abridgment of  speech  which  is\t not
\nprohibited by Art. 13(2).  In other words, the contention is
\nthat  the provisions of the Newsprint Control Order as\twell
\nas  those of the Newsprint Policy relate to  the  regulation
\nand  distribution of newsprint as a commodity  necessitated
\nby its scarcity and that these provisions are concerned,  if
\nat  all,  with the business activity of the press  and\thave
\nnothing\t to  do with the freedom of speech,-  and,  even  if
\nthere is an indirect impingment upon the freedom of  speech,
\nit  is not an abridgment of that freedom as contemplated  by
\nArt. 13(2).\n<\/p>\n
Art.  13(2) provides that the State shall not make  any\t law
\nwhich  takes away or abridges the rights conferred  by\tPart
\nIII and any law made in contravention of this clause  shall,
\nto  the\t extent\t of  the contravention,\t be  void.   In\t the
\ncontext, what is prohibited by Art. 13(2) is, the making  of
\nany law which takes away or abridges the right conferred  by
\nArt.  19(1)(a).\t  What\tDr. Meiklejohn\tsaid  of  the  First
\nAmendment  of the Constitution of U.S.A. applies equally  to
\nArt. 19(1)(a) read with Art. 13(2).  He said:\n<\/p>\n
\t      “That  amendment,\t then, we may  take  it\t for
\n\t      granted,\tdoes  not forbid ‘the  abridging  of
\n\t      speech.  But, at the same time, it does forbid
\n\t      the abridging of the freedom of speech.”<\/p><\/blockquote>\n
\t\t      (See Political Freedom, p. 21)
\nArt,  19(1)(a) guarantees to the citizens,  the\t fundamental
\nright of the freedom of speech and Art. 19(2) enumerates the
\ntype of restrictions which might be imposed by law.  It does
\nnot  follow  from  this that freedom of\t expression  is\t not
\nsubject\t to regulations which may not amount to\t abridgment.
\nIt  is\ta total misconception to say that speech  cannot  be
\nregulated  or  that every regulation of speech would  be  an
\nabridgment  of\tthe  freedom of\t speech.   In  other  words,
\nregulation of speech is not inconsistent with the concept of
\nthe  freedom,  of speech unless the  regulation\t amounts  to
\nabridgment  of that freedom.  No freedom, however  absolute,
\ncan  be free from regulation.  Though the right\t under\tArt.
\n30(1) is in terms absolute, this Court said In Re the Kerala
\nEducation  Bill,  1957(1),  that the  right  is\t subject  to
\nreasonable   regulation.    The\t Privy\tCouncil said   in
\nCommonwealth of Australia v. Bank of New South Wales(2) that
\nregulation  of\ttrade and commerce is  compatible  with\t the
\nabsolute  freedom of trade and commerce. In fact,  the\tvery
\nessence of freedom in an ordered society is regu-
\n(1) [1959] S.C.R. 995.\n<\/p>\n
(2) [1950] A.C. 235, 310.\n<\/p>\n
804<\/span><\/p>\n
lation.\t  The  application  of the term\t ‘-abridge’  is\t not
\ndifficult  in many cases but the problem arises\t in  certain
\ntypes  of  situations.\t The  important\t ones  are  where  a
\nregulation is not a direct restriction of expression but  is
\ndesigned to accomplish another objective and the impact upon
\nthe  expression is secondary or indirect.  This problem\t may
\nappropriately  be  formalized in terms of defining  the\t key
\nelements,  namely, “freedom of speech “abridge”\t and  “law”.
\nThese  definitions must be functional in character,  derived
\nfrom the basic considerations underlying a system of freedom
\nof  expression\t(See  Thomas I- Emerson,  Toward  a  General
\nTheory of First Amendment(1).  As I said, measures which are
\ndirected  at  other  forms  of activity\t but  which  have  a
\nsecondary, indirect or incidental effect upon expression  do
\nnot  generally\tabridge\t the freedom of\t speech\t unless\t the
\ncontent of, the speech itself is regu lated.  Such  measures
\ninclude\t various types of tax and economic regulations,\t the
\nimposition   of\t  political  qualification   for   obtaining
\nGovernment  employment or any other benefits or\t privileges,
\nthe  activities of legislative committees and the  political
\nrestrictions  on  rights  of  aliens.\tBy  hypothesis,\t the
\nregulation  imposed is, taken by itself, a legitimate,\tone,
\naimed  directly at the control of some other activity.\t The
\nquestion  is its secondary impact upon an admitted area,  of
\nexpression.   This is essentially a problem  of\t determining
\nwhen  the regulation at issue has an effect upon  expression
\nwhich  constitutes an abridgment within the meaning of\tArt.
\n13(2).\t In other words, the Court must undertake to  define
\nand give content to the word “abridge” in Art. 13(2).\tThis
\njudgment,  like the judgment in defining “free speech”\tmust
\nbe  made in the light of the affirmative  theory  underlying
\nfreedom of expression to which I shall come in a moment, and
\nthe  various conditions essential to maintaining a  workable
\nsystem.\t   In\tfact,\tregular\t  tax\tmeasures,   economic
\nregulations,  social  welfare  legislation  like  a  general
\ncorporation tax, wage and hour legislation, factory laws and
\nsimilar\t measures  may,\t of course, have  some\teffect\tupon
\nfreedom\t of  expression\t when applied to  persons  or  orga-
\nnisations  engaged in various forms of\tcommunication.,\t But
\nwhere the burden is the same as that borne by others engaged
\nin  different  forms  of activity,  the\t similar  impact  on
\nexpression  seems  clearly  insufficient  to  constitute  an
\nabridgment  of\tfreedom\t of expression.\t  The  use  of\tsuch
\nmeasures  to  control  the content of  expression  would  be
\nclearly impermissible as that would be an abridgment of the’
\nfreedom of speech. (see Thomas I. Emerson, Toward a  General
\nTheory\tof  First Amendment(1).\t So also a special  tax\t on
\npress  alone,  or, a tax exemption available only  to  those
\nwith particular political views or associations would not be
\npermitted (see Alice Lee Gorsjean v. American Press  Company
\n(2 ) and Robert Murdock v. Commonwealth of  Pennsylvania(3).
\n“In other words, though the speech itself be under the First
\nAmendment,
\n(1)  Yale Law Journal, Vol. 72, 962-63, 877.
\n(2) 297 U.S. 233.\n<\/p>\n
(3) 319 U.S. 105.\n<\/p>\n
805<\/span><\/p>\n
the  manner of its exercise or its, collateral\taspects\t may
\nfall beyond the scope of the amendment”(1).  This principles
\nillustrated  by\t the case of Naresh  Shridhar  Mirajkar\t and
\nOthers v. The State of Maharashtra and Another<\/a>(2) where\t the
\nBombay\tHigh Court, by an order, prohibited the\t publication
\nof  the evidence of a witness and the question was,  whether
\nthe  order abridged the fundamental right of the freedom  of
\nspeech of the petitioner in the case.  This Court held by  a
\nmajority that it did not.  Gajendragadkar, C. J. said:\n<\/p>\n
\t      “As  we have already indicated,  the  impunged
\n\t      order was directly concerned with giving\tsuch
\n\t      protection to the witness as was thought to be
\n\t      necessary in order to obtain true evidence  in
\n\t      the case with a view to do justice between the
\n\t      parties.\t If,  incidentally, as a  result  of
\n\t      this  order, the petitioners were not able  to
\n\t      report  what they heard in Court, that  cannot
\n\t      be  said\tto make the impugned  order  invalid
\n\t      under  Article  19(1)(a) ….  Any  incidental
\n\t      consequence which may flow from the order will
\n\t      not introduce any constitutional infirmity  in
\n\t      it”.\n<\/p><\/blockquote>\n
It  was said that this dictum of the learned  Chief  Justice
\nwas  made under the radiating influence of A. K. Gopalan  v.
\nState\tof  Madras<\/a>(3)  and  that  the  decision\t  has\tbeen
\npractically overruled by Bank Nationalization Case (4). 1 do
\nnot wish to enter the controvercial thicket as to the extent
\nto  which the principle laid down in Gopalan’s\tcase(3)\t has
\nbeen  eroded by the Bank Nationalisation case (4).   I\tneed
\nonly  say that in the area of free speech, the\tprinciple  I
\nhave stated is well established.  The principle was  applied
\nby this Court in Express Newspapers Private Ltd. and Another
\nv.  The Union of India and others<\/a>(5).  There  the  question
\nwas  whether  the  provisions  of  the\tWorking\t Journalists
\n(Conditions  of Service) and Miscellaneous  Provisions\tAct,
\n1955,  violated\t the fundamental night\tof  the\t ‘petitioner
\nunder Art. 19(1)(a).  The argument was that the decision  of
\nthe  Wage  Board  in fixing the rates and  scales  of  wages
\nwithout\t any consideration whatsoever as to the capacity  of
\nthe newspaper industry to pay the same, imposed too heavy  a
\nfinancial  burden on the industry and, had disabled it\tfrom
\nexercising its fundamental right of the freedom. of, speech.
\nBut the Court said:\n<\/p>\n
\t      “The impugned Act,, judged by its\t provisions,
\n\t      was  not\tsuch, a law but\t was  a\t beneficient
\n\t      legislation    intended\tto   regulate\t the
\n\t      conditions   of\tservice\t  of   the   working
\n\t      journalists  and\tthe  consequences  aforesaid
\n\t      could not be the
\n\t      (1)   William  J. Brennan, Jr.,  “The  Supreme
\n\t      Court and the Meiklejohn Interpretation of the
\n\t      First Amendment,” Harvard Law.Review, Vol. 79,
\n\t      No.1 p.1
\n\t      (2) (1966) 3 S.C.R.744,762.\n<\/p><\/blockquote>\n
\t      (3)   (1960) S.C.R. 88.\n<\/p><\/blockquote>\n
\t      (4) (1970) 3 S.C.R. 532.\n<\/p><\/blockquote>\n
\t      (5)   (1959) S.C.R. 12.\n<\/p><\/blockquote>\n
\t      806<\/span><\/p>\n
\t      direct and inevitable result of it.  Although,
\n\t      there  could  be\tno doubt  that\tit  directly
\n\t      affected\tthe  press  and\t fell  outside\t the
\n\t      categories  of  protection mentioned  in\tArt.
\n\t      19(2), it had not the effect of taking away or
\n\t      abridging the freedom of speech and expression
\n\t      of  the  petitioner and  did  not,  therefore,
\n\t      infringe Art. 19(1)(a) of the Constitution.”\n<\/p><\/blockquote>\n
The same principle finds expression in the decision in U. S.
\nv.  O’ Brien(1) where the U.S. Supreme Court said that\teven
\nassuming  that\tthe  alleged communicative  element  in\t the
\nburning\t of the Selective Service Certificate is  sufficient
\nto  bring into play the freedom of speech, it combines\tboth
\n‘speech’  and  ‘non-speech’ ‘elements, and when\t speech\t and
\nnon-speech  elements  are  combined in the  same  course  of
\nconduct,  a sufficiently important governmental interest  in
\nregulating  the\t non-speech element can\t justify  incidental
\nlimitations  on\t the freedom of speech.\t The  Court  further
\nobseved that a government regulation is sufficiently  justi-
\nfied  if  it  is  within the  constitutional  power  of\t the
\nGovernment;  if\t it  furthers an  important  or\t substantial
\ngovernmental  interest;\t if  the  governmental\tinterest  is
\nunrelated  to  the suppression of free\texpression  and\t the
\nfreedom\t of  speech is no greater than is essential  to\t the
\nfurtherance of that interest.\n<\/p>\n
In  Sakal  Papers (P) Ltd. and others v. Union\tof  India<\/a>(2)
\nthis Court was concerned with the validity of the  Newspaper
\n(Price\tand Page) Act, 1956, and Daily Newspaper (Price\t and
\nPage)  Order, 1960.  The whole subject matter fell  directly
\nunder  Art.’  19(1)(a).\t  It  was  not\ta  case\t where\t the
\nimpingement  on\t the freedom of speech\twas  indirect.\t The
\nlegislation in that case directly restricted circulation  of
\nnewspapers.  The direct effect of the legislation, in  other
\nwords,\twas to abridge the freedom of speech  by  curtailing
\ncirculation.   The  learned judges, after referring  to\t the
\nExpress\t Newspaper case(3) said that the impugned  law,\t far
\nfrom  being  one which merely interfered with the  right  of
\nfreedom of speech incidentally, did so directly.
\nMr.    Palkhiwala,  appearing  for the\tpetitioners  in\t Writ
\nPetition  No. 334 of 1971, submitted that the true  test  to
\ndecide Whether the freedom of speech of the petitioners has,
\nbeen  abridged\tis to see what is the direct effect  of\t the
\nNewsprint  Control  Order  and\tthe  Newsprint\tPolicy.\t  He
\nsubmitted  that it is neither their pith and  substance\t nor
\ntheir subject matter that should be taken into consideration
\nfor  deciding the question whether they operate\t to  abridge
\nthe  freedom  of  speech.  but\ttheir  direct  effect.\t The
\nquestion to be asked and answered, according to counsel\t is,
\nwhat is the direct effect of the Newsprint Control Order and
\nthe Newsprint Policy ?\n<\/p>\n
(1) 391 U.S. 367.      (2) [1962] 3 S.C.R. 842, 866.
\n(3)  [1959] S.C.R. 12.\n<\/p>\n
\t\t\t    807<\/span><\/p>\n
If,  on\t account  of  scarcity\tof  newsprint,\tit  is\t not
\npossible,,  on\tan equitable distribution, to allot  to\t the
\npetitioners,  newsprint to the extent necessary to  maintain
\nthe present circulation of the newspapers owned by them with
\nsame  page  level and, as a result, the circulation  of\t the
\nnewspapers  or their page level has to be reduced, could  it
\nbe  contended that there has been abridgment of the  freedom
\nof  speech  ?  Surely,\tthe  reduction\tin  page  level\t  or
\ncirculation is the direct result of the diminished supply of
\nnewsprint.   Yet, I do not think that anybody Will say\tthat
\nthere  is  an abridgement of the freedom of  speech  of\t the
\npetitioners.   There might be an abridgement of speech,\t but
\nnot an abridgment of the, freedom of speech.
\nThe   pith  and\t substance  test,  although   not   strictly
\nappropriate, might serve a useful purpose in the process  of
\ndeciding whether the provisions in question which work\tsome
\ninterference  with  the freedom of  speech  are\t essentially
\nregulatory in character (see the observation of Lord  Porter
\nin Commonwealth of Australia v.Bank of New South Wales(.’)).
\nWith this background, let me proceed to consider more speci-
\nfically the arguments of the petitioners.
\nIt  was\t contended for the petitioners\tthat  the  newsprint
\npolicy\twhich  fixes a 10-page ceiling\tfor  calculation  of
\nnewsprint  quota  for their dailies which had a\t page  level
\nabove ten directly abridges their fundamental right of\tfree
\nspeech and that the provision of the Newsprint Policy_ which
\nprovides for 20 per cent increase in the number of pages  to
\ndaily  newspapers within the ceiling of 10  pages  off-.ends
\nArt. 14.\n<\/p>\n
Before\t1972-73, the newsprint, allocation policy was  based
\non  the\t page  level of 1957 coupled  with  the\t circulation
\nfigures\t of 1961-62, and all entitlements  were\t calculated,
\nwith allowable increases and adjustments, from year to\tyear
\non  that basis.\t As a result, the newspapers  which  entered
\nthe  field  after 1962-63 were at a  disadvantage  and\twere
\npegged to their own lower page and circulation level.  There
\nwere  many  papers specially in the Indian  Languages  group
\nwhere  the actual circulation even during  1970-71  exceeded
\nthe  notional  circulation  figure  which  was\tarrived\t  at
\ncumulatively  based on the 1961-62 figures.  The  result  of
\nthe  previous policies was that some news papers  which\t had
\nalready a very large circulation at the time of introduction
\nof  newsprint  rationing  and were  not\t interested  in\t in-
\ncreasing  circulation  substantially were able\tto  use\t the
\nnewsprint  allotted to them so as to increase the number  of
\npages.\t On the other hand, the newspapers which were  at  a
\nlower level of circulation but had the potential to increase
\nthe readership were restricted to the ad hoc percentage
\n(1)  [1950] A.C. 235, 312-3.\n<\/p>\n
808<\/span><\/p>\n
increase  allowed under those policies but were\t unable,  at
\nthe same time to increase the number of their pages as\tthey
\ncould not afford to cut down the existing circulation.\t The
\ngrowth\tof such newspapers was, therefore, affected  by\t the
\nprior  newsprint allocation policies.  The Newsprint  Policy
\nin  question seeks to remedy this situation.  It  recognises
\nthe circulation of all newspapers big and small as of  1970-
\n71 and provides for a small growth rate. 1970-71 is taken as
\nthe base year because, with the events in Bangla Desh, Indo-
\nPak  hostilities  and the State elections,  the\t circulation
\nfigures\t for  1971-72 would not\t represent  the\t circulation
\nfigures of a normal year.\n<\/p>\n
The  fixation  of  10-page ceiling for\tthe  calculation  of
\nnewsprint  quota has, among the big newspapers, affected  22
\nnewspapers  which  , prior to the policy for  1972-73,\twere
\nactually operating on a page-level above 10.
\nThe Union of India justifies the reduction in the page level
\nof these papers to 10 on three principal grounds : (1)\tthat
\nthese papers devote proportionately high percentage of space
\nfor  advertisements at high rates and that the cut in  pages
\n‘imposed would not be felt by them if they rationalise their
\nworking\t and adjust their advertisement space; (2) that\t the
\nimposition  of cut in the pages was necessary on account  of
\nthe  short  supply  of 11,000 tonnes  of  newsprint  due  to
\nsuspension  of U.S. Aid and (3) that the cut was  necessary
\nto have fair and equitable distribution of newsprint amongst
\nall newspapers and periodicals.\n<\/p>\n
The  objectives\t sought to be achieved.\t by.  the  Newsprint
\nPolicy\tare  : (1) to correct the inequity of  the  previous
\nnewsprint  allocation  policies\t as a result  of  which\t the
\nnewspapers  which  had high page level in  1957\t got  unfair
\nadvantage over the newspapers which were started  thereafter
\nand  (2) to help the newspapers operating below 10 pages  to
\nachieve,  a 10 page level by 20 per cent increase in  growth
\nrate  so as to enable them to attain a position of  equality
\nwith those which were operating above 10-page level in 1970-\n<\/p>\n
71.
\nIt  may be recalled that the Newsprint Policy  provides\t for
\nfixation  of basic entitlement for newspapers  whose  actual
\nnumber of pages was more than 10 during 1970-71 and  1971-72
\non  the basis of (1) an average of 10 pages, and (2)  either
\nthe average circulation in 1970 or admissible circulation in
\n1971-72, plus, increase admissible under the policy of 1971-\n<\/p>\n
72.  whichever\tis  greater.  Fixation\tof  page  level\t for
\ncalculating the entitlement of quota for a newspaper is\t not
\na  new feature.. The previous policies provided\t inter\talia
\nthat, a location would be calculated on the basis of a page
\nlevel  upto  12 pages and restricted to an increase  of\t not
\nmore  than  2 pages at a time.\tTherefore,  even  under\t the
\nprior  policies, the newsprint allocation was calculated  on
\nthe basis of a maximum
\n809<\/span>
\npage level which was 12 pages as mentioned above, except  in
\nthe case of six newspapers whose page level in 1957 was more
\nthan 12 pages.\n<\/p>\n
Dailies\t are classified as ‘big’, ‘medium’ and\t‘small’.   A
\nnewspaper  With a circulation of over 50,000 is ‘big’,\tthat
\nwith a circulation ranging from 15,000 to 50,000 is ‘medium’
\nand  that with a circulation below 15,000 is  ‘small’.\t The
\naverage\t page number of big dailies was 10.3. Out of the  45
\nbig  dailies,  23 operated on a page level of less  than  10
\npages and 22 operated on a page level of more than 10.\t The
\naverage page level of all the dailies was 5.8. Out of the 45
\nbig  dailies, 30 are language, and 15 English.\tAll  the  15
\nbig  dailies  in English operated on an average\t page  level
\nover  10  and their average page level was 13.45.  Even\t the
\nmedium English dailies operated on a page level over 10\t and
\nthe average of their page level was 11. 08.\n<\/p>\n
The  Government contended that the effect of the  policy  of
\nallowing page increase and circulation increase from time to
\ntime has been to help the growth of press; that this is\t how
\npapers\tlike Anand Bazar Patrika Jugantar and Deccan  Herald
\n(English) have come to the present level of circulation\t and
\nthat   newspaper   proprietors\tin   India   including\t the
\npetitioners  have unanimously recommended to the  Government
\nin  January,  1969,  that a page level of 8  should  be\t the
\nnational minimum requirement for a medium of information and
\nthat  it  should be permitted to reach as wide a  public  as
\npossible.\n<\/p>\n
To examine the question whether Newsprint Policy is directed
\nagainst\t the big dailies and is calculated to strangle\tthem
\nand  whether it would offend their fundamental rights  under
\nArt.  14 and 19 (1) (a), it is necessary to have an idea  as
\nto what are the objects sought to be achieved by the freedom
\nof  speech  and\t how they could be  achieved.\tIt  is\talso
\nnecessary to have some notion about the concept of  equality
\nin the distribution of a scare commodity like newsprint.
\n The  freedom of speech is a concept which was\ttransplanted
\ninto  our  Constitution\t from the  First  Amendment  to\t the
\nConstitution  of U.S.A. In Express, Newspapers case(1)\tthis
\nCourt observed
\n\t      “It is trite to, observe that the\t fundamental
\n\t      right to the freedom of speech and  expression
\n\t      enshrined\t  in   Art.   19   (1)(a)   of\t our
\n\t      Constitution  is based on these provisions  in
\n\t      Amendment 1 of the Constitution of the  United
\n\t      States of America…..\n<\/p>\n
\t      (1)   (1959) S.C.R. 12.\n<\/p>\n
\t      810<\/span><\/p>\n
As  to\twhat  the  ‘freedom of speech’\tmeans  there  is  no
\nunanimity  A among the jurists.\t Writing in  the  Federalist
\nPapers(1), Alexander Hamilton observed :\n<\/p>\n
\t      “On  the subject of the liberty of the  press,
\n\t      as  much\tas has been said, 1  cannot  forbear
\n\t      adding a remark or two\t1    contend\tthat
\n\t      whatever has been said about it\t  amounts to
\n\t      nothing.\t What signifies a  declaration\tthat
\n\t      “the liberty of the press shall be  inviolably
\n\t      preserved” ? What is the liberty of the  Press
\n\t      ?\t Who can eve it any definition\twhich  would
\n\t      not leave the utmost latitude for evasion ?  I
\n\t      hold it to be impracticable
\n\t      Professor Chafee said    (2 ) :\n<\/p><\/blockquote>\n
\t      “The  truth is, I think, that the framers\t had
\n\t      no  very clear idea as to what they  meant  by
\n\t      “the freedom of speech or of the press” but we
\n\t      can  say with reasonable assurance  ….\tthat
\n\t      the  freedom which Congress was  forbidden  to
\n\t      abridge  was  not, for  them.’  some  absolute
\n\t      concept which had never existed on earth.”
\n\t      What Lincoln said on liberty is relevant here:
\n\t      “The world has never had a good definition  of
\n\t      [it]”.\n<\/p><\/blockquote>\n
\t      Justice\tHolmes\tgave  at   different   times
\n\t      opposite\t interpretations  of  the   historic
\n\t      meaning of the First Amendment.  Speaking\t for
\n\t      himself and Justice Brandeis, he observed :(3)
\n\t      “History seems to me against the notion (that)
\n\t      the  First  Amendment left the common  law  of
\n\t      seditious libel in force.”\n<\/p><\/blockquote>\n
\t      A\t few years earlier, he had written  for\t the
\n\t      Court
\n\t      “(T)he  main  purpose of\tsuch  constitutional
\n\t      provisions  ‘to  prevent\tall  such   previous
\n\t      restraints…  as had been practices by  other
\n\t      governments,’  and  they do  not\tprevent\t the
\n\t      subsequent punishment of such as may be deemed
\n\t      contrary to the public welfare”.\n<\/p><\/blockquote>\n
In  this  statement Holmes had the support  of\tCooley,\t who
\nmaintained that its Blackstonian outlook “has been  followed
\nby American commentators of standard authority as  embodying
\ncorrectly   the idea incorporated in the constitutional\t law
\nof  the\t country by the provisions in the American  Bill  of
\nRights.”\n<\/p>\n
The values sought by society in protecting the right to\t the
\nfreedom\t of  speech would fall into four  broad\t categories.
\nFree   expression   is\tnecessary  :  (1)   for\t  individual
\nfulfilment,   (2)   for\t attainment  of\t  truth,   (3)\t for
\nparticipation by members of the society
\n(1)  The Federalist, No. 84, at p. 514.\n<\/p>\n
(2)  Chafee, Book Review, 62, Harvard Law Review, 891, 898.
\n(3)  Abrams v. U.S., 250 U.S. 616, 630.\n<\/p>\n
(4)  Patterson v. Colorado, 215 U.S. 454, 462.\n<\/p>\n
811<\/span><\/p>\n
     in\t political  or social decision making and  (4)-\t for
\nmaintaining  the  balance ‘between stability and  change  in
\nsociety.   In the traditional theory, freedom of  expression
\nis  not only an individual good, but a social good.   It  is
\nthe  best  process for advancing knowledge  and\t discovering
\ntruth.\t The  theory  contemplates more than  a\t process  of
\nindividual  judgment.  It asserts that the process  is\talso
\nthe best method to reach a general or social judgment.\tIn a
\ndemocracy  the\ttheory\tis  that all  men  are\tentitled  to
\nparticipate in the process of formulating- common decisions.
\n(see  Thomas  I. Emerson, Toward a General Theory  of  First
\nAmendment)  (supra).  The crucial point is not that  freedom
\nof   expression\t is  politically  useful  but  that  it\t  is
\nindispensable to the operation of a democratic system.\tIn a
\ndemocracy the basic premise is that the people are both\t the
\ngovernors and the governed.  In order that governed may form
\nintelligent and wise judgment it is necessary that they must
\nbe  appraised  of all the aspects of a question on  which  a
\ndecision  has to be taken so that they might arrive  at\t the
\ntruth.\t And  this is why Justice Holmes said in  Abrams  v.
\nUnited States (supra)
\n\t      “But  when  men have realized  that  time\t has
\n\t      upset  many fighting faiths, they may come  to
\n\t      believe  even more than they believe the\tvery
\n\t      foundations  of  their own  conduct  that\t the
\n\t      ultimate\tgood  desired is better\t reached  by
\n\t      free  trade  in ideas-that the  best  test  of
\n\t      truth  is the power of thought to\t get  itself
\n\t      accepted in the competition of the market, and
\n\t      that  truth  is the only\tground\tupon  which
\n\t      their wishes safely can be carried out.\tThat
\n\t      at   any\t rate\tis   the   theory   of\t our
\n\t      Constitution.”\n<\/p>\n
Judge  Learned Hand said that the newspaper industry  serves
\none of the most vital of all general interests, namely,\t the
\ndissemination  of news from as many different  sources,\t and
\nwith  as many different facets and colours as  is  possible;
\nthat   the   freedom  of  speech  presupposes\tthat   right
\nconclusions  are  more\tlikely\tto  be\tgathered  out  of  a
\nmultitude of tongues, than through any kind of authoritative
\nselection  (see United States v. Associated Press). (1)\t The
\nsame sentiment was echoed by Justice Black when he said that
\nthe  freedom  of  speech rests on the  assumption  that\t the
\nwidest\tpossible dissemination of information  from  diverse
\nand antagonistic sources is essential to the welfare of\t the
\npublic (Associated v. United States(2) But this\t fundamental
\npresupposition\tis  seriously weakened by  concentration  of
\npower.\t Instead of several views of the facts\tand  several
\nconflicting opinions, newspaper readers in many cities,\t or,
\nstill  worse, in wide regions, may get only a single set  of
\nfacts and a single body of opinion, all emanating from one
\nor two owners.(3) Our Constitutional law has been singularly
\nindifferent
\n(1)  52 Federal Supplement 362, 372. (So Dist.\tN.Y. (1943).
\n(2)  326 U.S. Reports 1, 20 (1945).\n<\/p>\n
(3)  See   Zechariah  Chafee,  Jr.,  Government\t  and\tMass
\nCommunications, Vol.  1, pp. 24-25.\n<\/p>\n
812<\/span><\/p>\n
to   the  reality  and\timplications   of   non-governmental
\nobstructions to\t      the spread, of political truth.’\tThis
\nindifference  becomes  critical\t when  a  comparatively\t few
\nprivate\t hands are in a position to determine not  only\t the
\ncontent of information but its very availability (see Jerome
\nA.  Barren,  “Access  to the Press”-A  New  First  Amendment
\nRight”).(1)
\nWith  the concentration of mass media in a few\thands,\tthe
\nchance\tof  an\tidea  antagonistic  to\tthe  idea  of\tthe,
\nproprietors  of\t the big newspapers getting  access  to\t the
\nmarket has become very remote.\tIt is no use having a  right
\nto  express  your idea, unless you have ,got  a\t medium\t for
\nexpressing  it.\t  The concept of a free\t market\t for  ideas
\npresupposes  that  every  type of ideas will  get  into\t the
\nmarket\tand if free access to the market is denied  for\t any
\nideas,\tto that extent, the process of\tcompetition  becomes
\nlimited\t and  the chance of all the ideas  coming  to  the
\nmarket\tis  removed.  There can be no doubt  that  any\tmass
\nmedium\thaving the greatest circulation will  influence\t the
\npolitical  life of the country because the ideal  for  which
\nthe  paper  stands has got the greatest\t chance\t of  getting
\nitself\tknown  to  the public.\tIt  will  also\taffect the
\neconomic pattern of the society.  Whether or not the  modern
\nbig newspaper is the cultural arm of the industry, it has an
\ninterest   in\tthe  present  method   of   production\t and
\ndistribution, as it subsists mainly upon advertisement.
\nThe  Mahalanobic  Committee on Distribution  of\t Income\t and
\nLevels\tof  Living, in its report has,\tafter  stating\tthat
\neconomic  power is exercised also through control over\tmass
\nmedia of communication, said
\n\t      “Of these, newspapers are the, most  important
\n\t      and   constitute\ta  powerful   ancillary\t  to
\n\t      sectoral\tand  group interests.\tIt  is\tnot,
\n\t      therefore, a matter for surprise that there is
\n\t      so  much inter-linking between newspapers\t and
\n\t      big business in this country, with  newspapers
\n\t      controlled to a substantial extent by selected
\n\t      industrial  houses directly through  ownership
\n\t      as  well as indirectly through  membership  of
\n\t      their  boards  of directors.  In\taddition  of
\n\t      course,\tthere\tis  the\t  indirect   control
\n\t      exercised through expenditure on advertisement
\n\t      which  has been growing apace during the\tPlan
\n\t      periods.\t In  a\tstudy  of  concentration  of
\n\t      economic\tpower in India, one must  take\tinto
\n\t      account\tthis  link  between   industry\t and
\n\t      newspapers  which exists in our country  to  a
\n\t      much larger extent than is found in any of the
\n\t      other democratic countries in the world.”
\n\t      (1)   Harvard Law Review, Vol. 80, 1641, 1643.
\n\t      (2)   Report of the Committee on\tDistribution
\n\t      of  income and levels of Living, Part  I,\t pp.\n<\/p>\n
\t      51-52.\n<\/p>\n
\t      813<\/span><\/p>\n
If  ever  there was a self-operating, market  of  ideas,  as
\nJustice\t Holmes assumed, it has long  since ceased to  exist
\nwith  the  concentration  of  mass  ,media  in-\t few  hands.
\nProtection  against  government is not enough  to  guarantee
\nthat  a man who has something to say will have a  chance  to
\nsay it.\t The owners and the managers of the press  determine
\nwhich  persons, which facts, which version of  facts,  which
\nideas  shall  reach the public.\t  Through  concentration  of
\nownership,  the variety of sources of news and\topinion\t has
\nbecome\tlimited.  At the same time, the citizen’s  need\t for
\nvariety\t and  new opinions has increased.   He\tis  entirely
\ndependent on the quality, proportion and extent of his\tnews
\nsupply,-the  materials for the discharge of his duties as  a
\ncitizen\t and a judge of public affairs-on a few\t newspapers.
\nThe Press Commission has observed in its report (Part 1,  p.
\n3 1 0) that since the essence of the process of formation of
\nopinion\t is  that  the public must have\t an  opportunity  of
\nstudying  various points of view and that the exclusive\t and
\ncontinuous advocacy of one point of view through the  medium
\nof  a newspaper which holds a monopolistic position  is\t not
\nconducive to the formation of healthy opinion, diversity  of
\nopinion\t  should  be  promoted\tin  the\t interest  of\tfree
\ndiscussion of public affairs,
\nThe mass media’s development of an antepathy to ideas  anta-
\ngonistic to theirs or novel or unpopular ideas,\t  unorthodox
\npoints\tof view which have no claim for expression in  their
\npapers\tmakes  the  theory  of market  place  of  ideas\t too
\nunrealistic.  The problem is how to bring all ideas into the
\nmarket and make the concept of freedom of speech a live\t one
\nhaving\tits  roots  in reality.\t A  realistic  view  of\t our
\nfreedom of expression requires the recognition that right of
\nexpression is somewhat thin if it-can be exercised only\t on
\nthe  sufferance of the managers of the\tleading\t newspapers.
\nThe  freedom  of speech, if it has to  fulfil  its  historic
\nmission,  namely, the spreading of political truth  and\t the
\nwidest\tdissemination  of news, must be a  freedom  for\t all
\ncitizens  in the country.  “What is essential” according  to
\nMeiklejohn, “is not that everyone shall speak but that every
\nthing\tworth  saying  shall  be  said”.(1)  If\t media\t are
\nunavailable  for most of the speakers, can the minds of\t the
\nhearers be reached effectively?\t It is here that creation of
\nnew opportunities for expression or greater opportunities to
\nsmall  and  medium dailies to reach a position\tof  equality
\nwith  the big ones, is as important as the right to  express
\nideas  without fear of governmental restraint.\tIt  is\tonly
\nthe  new  media\t of communication that\tcan  lay  sentiments
\nbefore the public and it is they rather than the  government
\nwho  can most effectively abridge expression  by  nullifying
\nthe  opportunity for an idea to win acceptance.\t As  a\tcon-
\nstitutional theory for communication of ideas, laissez faire
\nis  manifestly irrelevant (see Barren, Access to  Press).(2)
\nWhat  is, therefore, required is an interpretation  of\tArt.
\n19 (1) (a) which focuses
\n(1) Political Freedom, p. 26.\t(2) Harvard Law Review, Vol.
\n80, 1641.\n<\/p>\n
814<\/span><\/p>\n
on  the idea that restraining the hand of the government  is
\nquite  useless\tin assuring free speech, if a  restraint  on
\naccess\t is  effectively  secured  by  private\tgroups.\t   A
\nconstitutional prohibition against governmental\t restriction
\non  the\t expression is effective only  if  the\tConstitution
\nensures an adequate opportunity for discussion.
\nAny  scheme of distribution of newsprint which.\t would\tmake
\nthe  freedom of speech a reality by making it  possible\t the
\ndissemination of ideas as news with as many different facets
\nand  colours as possible would not violate  the\t fundamental
\nright  of  ‘the freedom of speech of  the  petitioners.\t  In
\nother  words, a scheme for distribution of a commodity\tlike
\nnewsprint  which will subserve the purpose of free  flow  of
\nideas  to  the\tmarket from as\tmany  different\t sources  as
\npossible would be a step to advance and enrich that freedom.
\nIf the scheme of distribution is calculated to prevent\teven
\nan  oligopoly ruling the market and thus check the  tendency
\nto  monopoly  in the market, that will not be  open  to\t any
\nobjection   on\tthe  ground  that  the\tscheme\tinvolves   a
\nregulation of the press which would amount to an  abridgment
\nof  the\t freedom of speech (see Citizen Publishing’  Co.  v.
\nUnited States).(1) Promoting effective competition of  ideas
\nin  the market alone will ensure the emergence of truth\t out
\nof  the\t competition;  at any  rate  that  is  the   basis
\nunderlying   the   guarantee  of  free\t speech,   and\t any
\ndistribution of newsprint calculated to promote competition
\nby  making the competitors equal in strength cannot  but  be
\ncharacterized  as  a  scheme to advance\t the  freedom.\t One
\ncannot\tpromote competition by making the strong  among\t the
\ncompetitors  stronger or the tall taller but by\t making\t the
\nweak among them strong and the short tall.  So, even if\t the
\nscheme\tof distribution aims at making dailies with  smaller
\npage-level  and\t less  circulation  attain  a  position\t of’
\nequality  in  respect  of page level  and  circulation\twith
\nthose,\thaving\ta  page level of  10  and  enjoying  greater
\ncirculation,  that  would  not,\t in  any  way,\tbe  open  to
\nobjection on the ground of violation of Art.  19 (1) (a).  I
\nam  unable to understand how the fixation of a maximum\tpage
\nlevel  of  10 for calculation of quota\tof  newsprint  would
\noffend the fundamental right of the freedom of speech of the
\npetitioners.  In any scheme of distribution of a scarce com-
\nmodity,\t there must be some basis on which  the\t entitlement
\nshould\tbe  calculated.\t It is because newsprint  is  scarce
\nthat  it is being rationed.  Ex-hypothesi, newsprint  cannot
\nbe  distributed\t according to the needs of  every  consumer.
\nThe freedom of speech does not mean a right to obtain or use
\nan unlimited quantity of newsprint.  Art. 19 (1) (a) is\t not
\na  guardian  of unlimited talkativeness’. The  average\tpage
\nlevel  of  all\tthe  dailies was 58.   The  Union  of  India
\ncontends  that\tthe  petitioners  themselves  recommended  a
\nnational  minimum page level of 8 for dailies and that,\t but
\nfor    the   inordinate\t  space\t  devoted   to\t  commercial
\nadvertisement, 10 pages for a
\n(1)  394 U.S. 131.\n<\/p>\n
815<\/span><\/p>\n
daily would be sufficient to express its views and  publish
\nthe news and that the petitioners beat the big bass drum  of
\nArt. 19 (1) (a). not because their freedom of expression is
\nabridged,  but\tthat  they are deprived of  a  part  of\t the
\nrevenue from commercial advertisement.\n<\/p>\n
It is settled by the decision of this Court in Hamdard Dawa-
\nkhana (Wakf) Lal Kuan, Delhi & Another v. Union of India and
\nOthers<\/a>(1) that commercial advertisement does not come within
\nthe ambit of the freedom of speech guaranteed by Art.  19(1)\n<\/p>\n
(a).   I  have\talready indicated that\tany  curtailment  of
\nspeech\toccasioned  by\trationing of newsprint\tdue  to\t its
\nscarcity  can only affect freedom of speech  indirectly\t and
\nconsequently there would not be any abridgement of it.
\nIt has been said that in the scheme of distribution of news-
\nprint, unequals have been treated equally and therefore, the
\nNewsprint  Policy violates Art’ 14 of the Constitution.\t  To
\ndecide\tthis question regard must be had to the criteria  to
\nbe  adopted  in\t distributing the material  resources  of  a
\ncommunity.   Arguments\tabout equality in  this\t sphere\t are
\nreally\targuments  about  the criteria\tof  relevance.\t The
\ndifficulties  involved\tin  developing\tsuch  criteria\thave
\noccupied   philosophers\t  for\tcenturies.    Despite\t the
\nrefinements   that  distinguish\t the  theories\tof   various
\nphilosophers.,\tmost such theories represent  variations  on
\ntwo  basic  notions  of equality :  numerical  equality\t and
\nproportional equality.\tThe contrast between the two notions
\nis  illustrated\t by the difference between the right  to  an
\nequal  distribution  of\t things and the\t equal-\t right\twith
\nrespect to a distribution of such things.  According to\t the
\nformer, each individual is to receive numerically  identical
\namounts\t of  the  benefit being distributed  or\t the  burden
\nimposed in the public sector, whereas the latter means\tonly
\nthat  all  will\t receive  the  same  consideration  in\t the
\ndistributional\tdecision,  but that  the  numerical  amounts
\ndistributed   may  differ.   Proportional   equality   means
\nequality   in  the  distribution  according  to\t  merit\t  or
\ndistribution-  according  to  need  (see  Developments-Equal
\nProtection).  (2)  But\tthe  Supreme  Court  of\t U.S.A.\t has
\ndeparted  froth\t this traditional aproach in the  matter  of
\nequality   and\thas  adopted  a\t more  dynamic\tconcept\t  as
\nillustrated  by the decision in Griffin v.  Illinois(“)\t and
\nDouglas\t v. California. (4) In these cases it was held\tthat
\nthe  State  has\t an affirmative duty  to  make\tcompensatory
\nlegislation  in\t order\tto make men equal  who\tare  really,
\nunequal\t has undergone radical other words, the\t traditional
\ndoctrine  that the Court is concerned with  formal  equality
\nbefore\tthe law and is not concerned to make men  equal\t who
\nare really unequal has under gone radical
\n(1) [1960] 2 S.C.R. 671, 688-90
\n(2) Harvard Law Review,\t Vol. 82, p. 1165.\n<\/p>\n
(3) 351 U.S. 12.\n<\/p>\n
(4) 372 U.S. 353.\n<\/p>\n
816<\/span><\/p>\n
change\tin the recent years as illustrated by  these  cases.
\nJustice Harlan dissented both in Griffin’s case and Douglas’
\ncase  and his dissenting opinion in the former case  reveals
\nthe  traditional and the hew approaches and also  highlights
\nthe length to which the majority has, gone :\n<\/p>\n
\t      “The  Court thus holds that, at least in\tthis
\n\t      area of criminal appeals, the Equal Protection
\n\t      Clause  imposes on the States  an\t affirmative
\n\t      duty  to\tlift  the  handicaps  flowing\tfrom
\n\t      differences  in economic circumstances.\tThat
\n\t      holding  produces the anomalous result that  a
\n\t      constitutional  admonition  to the  States  to
\n\t      treat  all  persons  equally  means  in\tthis
\n\t      instance that Illinois must give to some\twhat
\n\t      is  requires others to pay for…. It  may  as
\n\t      accurately be said that the real issue in this
\n\t      case is not whether Illinois has discriminated
\n\t      but whether it has a duty to discriminate.”\n<\/p><\/blockquote>\n
The  crucial question today, as regards Art. 14, is  whether
\nthe  command implicit in it constitutes merely a ban on\t the
\ncreation  of  inequalities by the State, or, a\tcommand,  as
\nwell,\tto  eliminate  inequalities  existing  without\t any
\ncontribution  thereto by State action.\tThe answer  to\tthis
\nquestion, has already been given in the United States  under
\nthe equal protection clause in the two cases referred to, in
\ncertain\t areas.\t The Court, in effect, has began to  require
\nthe  State to adopt a standard which takes into account\t the
\ndiffering  economic and social conditions of  its  citizens,
\nwhenever these differences stand in the way of equal  access
\nto  the\t exercise of their basic rights.  It has  been\tsaid
\nthat justice is the effort of man to mitigate the inequality
\nof men.\t The whole drive of the directive principles of\t the
\nConstitution  is  toward this goal and it is  in  consonance
\nwith the new concept of equality.  The, only norm which\t the
\nConstitution  furnishes\t for distribution  of  the  material
\nresources of the community is the elastic norm of the common
\ngood  [see Art. 39 (b) 1] 1 do not think I can say that\t the
\nprinciple  adopted for the distribution of newsprint is\t not
\nfor the common good.\n<\/p>\n
That  apart, one of the objects of the Newsprint Policy\t was
\nto. remedy the inequality created by. the previous  policies
\nand to enable the dailies having less than 10 pages attain a
\nposition of equality with those operating on a page level of
\n10  or more.  I think the allowance of 20 per cent  increase
\nfor growth in page-level provided in Remark VII is based  on
\na classification and that the classification is grounded  on
\nan  intelligible differential. having a nexus to the  object
\nsought to be achieved.\n<\/p>\n
By, far the, most fundamental attack made by counsel for the
\npetitioners  was  that\tlevelled against  the  provision  in
\nRemark\tVIII  which  provides that within  the\tquantity  of
\nnewsprint authorised
\n817<\/span>
\nfor the licensing period, each newspaper\/periodical will  be
\nfree  to  increase  circulation by reducing  the  number  of
\npages,\tpage area and periodicity, but will not be  free  to
\nincrease  the number of pages, page area and periodicity  by
\nreducting circulation, to meet its individual  requirements.
\nIt was contended that this is direct inroad upon the freedom
\nof  speech and that by-no stretch of imagination can  it  be
\ncharacterized  as  newsprint control The argument  was\tthat
\nwhen  once  the\t quota has  been  determined  and  allotted,
\nfurther direct-ions as regards circulation or page number is
\nnothing\t but  brazen-faced trespass into the domain  of\t the
\nguaranteed  freedom.   It was said that once the  quota\t has
\nbeen  fixed  and allotted, the control over newsprint  as  a
\ncommodity  was\tover  and any  stipulation  as\tregards\t its
\nutilisation  thereafter\t can  only sound  in  the  realm  of
\nabridgment of the freedom of speech.\n<\/p>\n
Now, let me examine this argument with the respect which  it
\ndeserves.  If the entitlement of a consumer of newsprint  is
\ncalculated on the basis of page-level and circulation of the
\nnewspaper,  I  think  it would be an integral  part  of\t any
\nsystem\tof  rationing to tell the consumer  that  he  should
\nmaintain the page level and circulation of the paper.\tThat
\napart,\tas Meiklejohn said-and that, is\t plain\tcommonsense-
\n“First,\t let  it  be  noted, that by  these  words  (First
\nAmendment)  Congress  is not debarred from all\taction\tupon
\nfreedom of speech.  Legislation which abridges that  freedom
\nis  forbidden,\tbut not legislation to\tenlarge\t and  enrich
\nit.”(1) These remarks apply with equal force to Art. 1 9  (1
\n)  (a)\tread with Art. 13(2).  Any law or  executive  action
\nwhich advances the freedom of speech cannot be considered as
\nan abridgment of it.  The provision in question does not say
\nthat  the  proprietor  or publisher of\ta  newspaper  should
\nreduce its circulation.\t If the provision had said that\t the
\nproprietor  or publisher must reduce the circulation of\t the
\nnewspaper,   one  could\t have  understood  a  complaint\t  of
\nabridgment  of\tthe freedom of speech.\t The  provision,  in
\neffect,\t  only\t tells\tthe  proprietor\/publisher   of\t the
\nnewspaper: “maintain the circulation at the present level or
\nincrease if it you like by reducing the page lever’.   Would
\nthis  amount to an abridgment of the freedom of\t speech?   I
\nthink  not.   The  freedom of speech is\t only  enriched\t and
\nenlarged.\n<\/p>\n
it was contended that a proprietor\/publisher of a  newspaper
\nhas the undoubted freedom to increase its page level  within
\nthe  authorised\t quota\tand the provision  in  question,  by
\ninsisting  that\t page  level  should-not  be  increased\t  by
\nreducing circulation, has interfered with that freedom.\t  It
\nwas  argued  that  if  the provision  in  question  had\t not
\ninsisted  upon\tmaintaining the circulation at\tthe  present
\nlevel,\tthe publisher could have reduced the circulation  of
\nthe  newspaper\tand increased the number of its\t pages\tand,
\nincreas-\n<\/p>\n
(1)  See Political Freedom, p. 19.\n<\/p>\n
818<\/span><\/p>\n
ing  the number of pages at the expense of circulation is  a
\nmatter of freedom included within the concept of the freedom
\nof  speech.  I cannot agree.  Suppose, the provision in\t the
\nNewsprint  Policy had simply said that the proprietor  of  a
\nnewspaper  is not allowed to reduce its present\t circulation
\nand  stopped there ? What would have been the effect  ?\t The
\neffect would have been the same, namely, that the proprietor
\nwould  not have been entitled to increase the page level  of
\nthe  newspaper within the authorised quota.  The  incidental
\neffect\tof  the\t direction to maintain\tthe  circulation  or
\nincrease  it  would be to tell the proprietor  or  publisher
\nriot; to increase the number of its pages.  If the Newsprint
\nPolicy could legitimately say, without abridging the freedom
\nof  speech,  that a newspaper should  maintain\tits  present
\ncirculation, the fact that it also said that it, should\t not
\nincrease its page level and reduce circulation would not  in
\nany  way  affect the question.\tIf telling  a  publisher  or
\nproprietor  to\tmaintain the circulation of a  newspaper  or
\nincrease it, is not an abridgment of the freedom of  speech,
\nthe further express direction in the Newsprint Policy not to
\nincrease  its page-level within the authorised\tquota  would
\nnot  be an abridgment of the freedom, of speech as it is  an
\nimplied\t consequence  of-  the- direction  to  maintain\t the
\ncirculation.\n<\/p>\n
The matter can be looked at from another angle.\t The consti-
\ntutional  guarantee of the freedom of speech is not so\tmuch
\nfor the benefit of the press as it is for the benefit of the
\npublic.\t  The freedom of speech includes within its  compass
\nthe right of all citizens to read and be informed.  In\tTime
\nv. Hill(1) the U.S. Supreme Court said:\n<\/p>\n
\t      “The  constitutional guarantee of\t freedom  of
\n\t      speech  and press are not for the\t benefit  of
\n\t      the  press so much as for the benefit  of\t all
\n\t      the people.”\n<\/p><\/blockquote>\n
In  Griswold v. Connecticut(2) the, U.S. Supreme  Court\t was
\nof the opinion that the right of freedom of speech and press
\nincludes  not only the right to utter or to print, but\tthe
\nright to read.\n<\/p>\n
As  I  said.  the freedom of speech protects  two  kinds  of
\ninterest.  There is an individual interest, the need of\t men
\nto  express  their opinion on matters vital to\tthem  and  a
\nsocial\tinterest  in  the attainment of truth  so  that\t the
\ncountry\t may not only accept the wisest course but carry  it
\nout  in\t the wisest way.  “Now, in the method  of  political
\nGovernment, the point of ultimate interest is not the  words
\nof  the speakers, but the minds of hearers….\tThe  welfare
\nof the community requires that those who decide issues shall
\nunderstand  them”(3).\t“The general  principles  underlying
\nfirst  amendment safeguards may, for present  purposes,\t be
\nreduced\t to three judicially recognized\t specifics.   First,
\nProfessor Alexander.\n<\/p>\n
(1) 385 U.S. 374.\t\t  (2) 381 U,S. 479, 482.\n<\/p>\n
(3) Meiklejohn, Political Freedom P. 26.\n<\/p>\n
819<\/span><\/p>\n
Meiklejohn’s assertion that the first amendment was intended
\nto  define not an individual right to speak, but  rather,  a
\ncommunity   right  to  hear  has  been\tassumed\t  by   modem
\nconstitutional\tdecision (Rosenblatt v. Baer(1),  Lamont  v.
\nPostmaster  General (2) Roth v. United States(3),  Stromberg
\nv.  California(4)”(see\tPaul Goddstein,\t Copyright  and\t the
\nFirst Amendment(5).  That the right of the public to-hear is
\nwithin\tthe concept of the freedom of speech is\t also  clear
\nfrom  the pioneering opinion of Justice Burger, as  he\tthen
\nwas,  in Office of Communication of United Church of  Christ
\nv. F. C.C.<\/a>(6). The learned judge emphasised principally\t the
\nprimary\t status of “the right of the public to be  informed,
\nrather\tthan any right of the Government,  any\tbroadcasting
\nlicencee or any individual member of the public to broadcast
\nhis own particular views on any matter.”\n<\/p>\n
If  the right of the public to hear and be informed is\talso
\nwithin the concept of the freedom of speech, the government,
\nwhen  it insists upon, the newspapers concerned\t maintaining
\ntheir  present\tlevel of circulation does  not\tabridge\t the
\nfreedom\t of  speech but only enriches and enlarges  it.\t  In
\nother words, under the theory of the freedom of speech which
\nrecognises  not only the right of the citizens to speak\t but
\nalso  the  right of the community to hear, a policy  in\t the
\ndistribution of newsprint for maintenance of circulation  at
\nits  higher possible level, as it furthers the right of\t the
\ncommunity  to  hear,  will  only  advance  and\tenrich\tthat
\nfreedom.\n<\/p>\n
At present, our circulation is only 1.3 copies for every 100
\npeople\tand  4.6  copies  for every  100  literates  in\t the
\ncountry.   Circulation\tmust be doubled if the press  is  to
\nreach  ‘all  the  literates  in\t the  country.\t This  is  a
\nsufficient justification for a circulation oriented  policy.
\nNewsprint  which  is in short supply must be used so  as  to
\nhelp  to achieve the widest possible dissemination  of\tnews
\nand  at\t the same time meet the demands of the\tpress  as  a
\nwhole.\n<\/p>\n
Under  Art. 41 of the Constitution the State has a  duty  to
\ntake effective steps to educate the people within limits  of
\nits  available economic resources.  That includes  political
\neducation also.\n<\/p>\n
Public\tdiscussion  of\tpublic\tissues\ttogether  with\t the
\nspreading of information and any opinion on these issues  is
\nsupposed to be the main function of newspaper.\tThe  highest
\nand  lowest  in\t the scale of  intelligence  resort  to\t its
\ncolumns for information.  Newspaper is the most potent means
\nfor  educating\tthe people as it is read by those  who\tread
\nnothing\t else and, in politics, the common in  an  gets\t his
\neducation mostly from newspaper.\n<\/p>\n
(1)  383 U.S. 74, 94-95.\n<\/p>\n
(2)  381 U.S. 301.\n<\/p>\n
(3)  354 U.S. 476, 484.\n<\/p>\n
(4)  283 U.S. 359, 369.\n<\/p>\n
(5)  Columbia Law Review, Vol. 70, 983, 989.
\n(6)  Federal Reporter, 359, 2nd series, 994.\n<\/p>\n
820<\/span><\/p>\n
The  affirmative obligation of the Government to permit\t the
\nimport\tof newsprint by expending foreign exchange  in\tthat
\nbehalf is not only because press has a fundamental right  to
\nexpress\t itself, but also because the community has a  right
\nto  be supplied with information. and the Government a\tduty
\nto  educate the people within the limits of  its  resources.
\nThe  Government\t may, under cl. 3 of the  Imports  (Control)
\nOrder,\t1955  totally prohibit the import of  newsprint\t and
\nthus  disable  any  person from carrying on  a\tbusiness  in
\nnewsprint, it  is in the general interest of the public\t not
\nto  expend  any\t foreign exchange on  that  score.   If\t the
\naffirmative obligation to expend foreign exchange and permit
\nthe import of newsprint stems from the need of the community
\nfor  information and the fundamental duty of  Government  to
\neducate\t the people as also to satisfy the  individual\tneed
\nfor  self  expression,\tit is not for the  proprietor  of  a
\nnewspaper  alone to say that he will reduce the\t circulation
\nof  the\t newspaper  and\t increase its  page  level,  as\t the
\ncommunity  has\tan  interest in\t maintaining  or  increasing
\ncirculation of the newspapers.\tIt is said that a proprietor
\nof  a  newspaper has the freedom to cater to  the  needs  of
\nintellectual  highbrows\t who may choose to  browse  in\trich
\npastures  and  for that he would require more  pages  for  a
\nnewspaper  and that it would be a denial of his\t fundamental
\nright if he were told that he cannot curtail the circulation
\nand  increase the pages.  A claim to enlarge the  volume  of
\nspeech by diminishing the circulation raises the problem  of
\nreconciling  the citizens’ right to unfettered\texercise  of
\nspeech in volume with the community’s right to\tundiminished
\ncirculation.   Both  rights  fall within the  ambit  of\t the
\nconcept\t of freedom of speech as explained above.   I  would
\nprefer\tto  give more weight to the community’s\t claim\there
\nespecially  as I think that the claim to enlarge the  volume
\nof  speech  at\tthe  expense  of  circulation  is  not\t for
\nexercising the freedom of speech guaranteed by Art. 19(1)(a)
\nbut for commercial advertisement for revenue which will\t not
\nfall within the ambit of that sub-article.
\nIn every society, there are many interests. held in  varying
\ndegrees,  by individuals and groups, viz., the interest\t in,
\nvaluing\t of,  or  concern, for free  speech,  peace,  quiet,
\nprotection  of\tproperty, fair\ttrial,\teducation,  national
\nsecurity,  good highways, a decent minimum wage, etc.\t“The
\nattainment  of freedom of expression is not the sole aim  of
\nthe  good society.  As the private right of the\t individual,
\nfreedom of expression is an end in itself, but it is not the
\nonly  end  of man as an individual.   In  its  social  and
\npolitical  aspects,  freedom of expression  is\tprimarily  a
\nprocess or a method for reaching other goals.  It is a basic
\nelement.  in  the  democratic way of life, and\tas  a  vital
\nprocess\t it  shapes and determines the\tends  of  democratic
\nsociety.   But it is not through this process alone  that  a
\ndemocratic society will attain its ultimate ends”(1).
\n(1)  See Thomas 1, Emerson, Toward a General Theory of’\t the
\nFirst  Amendment  Yale Law Journal, Vol. 72,  1962-63.\t877,\n<\/p>\n
907.
\n821<\/span>
\nTherefore,  any\t theory of freedom of expression  must\ttake
\ninto  account other values such as justice, equality,  moral
\nprogress, the right of tile public to education arising from
\nthe affirmative duty cast on the Government by the directive
\nprinciples  to educate the people, apart from the  right  of
\nthe  community\tto read and be informed\t arising  under\t the
\ntheory\tof  the\t freedom of speech itself.   Art.  19(2)  is
\nconcerned with laws restricting or abridging the freedom  of
\nspeech\tfor  protecting the more important values.   It\t has
\nnothing to do with regulation as to the, manner or method of
\nspeech, including its volume, when that regulation does\t not
\ntouch  or  concern  the content of speech, and\twhen  it  is
\nintended or calculated to subserve or promote some paramount
\nsocial\tinterest(1).   The  question  then  is\twhether\t the
\nGovernment  could, in the distribution of newsprint,  insist
\non the widest circulation possible to subserve the right  of
\nthe people to be educated in opposition to the right of\t the
\nproprietor  or\tpublisher  to  reduce  the  circulation\t and
\nenlarge\t the  page number.  As I said,\tany  regulation\t not
\nintended  to control the content of speech but\tincidentally
\nlimiting its unfettered exercise will not be regarded as  an
\nabridgment  of\tthe freedom of speech, if there is  a  valid
\ngovernmental  interest arising from its duty to educate\t the
\npeople\tand  the value of the public of the  end  which\t the
\nregulation seeks to achieve is more than the individual\t and
\nsocial interest in the unfettered exercise in volume of\t the
\nright of free speech.  The formula in such cases is that the
\nCourt  must, balance the individual and social\tinterest  in
\nfreedom of expression against the social interest sought  by
\nthe regulation which restricts expression (supra).
\nIn  Konigsberg v. State Bar(2), Justice Harlan speaking\t for
\nthe majority observed:,
\n.lm15
\n“.  .  .  .  . . . On the  other  hand,\t general  regulatory
\nstatutes, not intended to control the content of speech\t but
\nincidentally limiting its unfettered exercise, have not been
\nregarded as the type of law the First Fourteenth  Amendment
\nforbade\t Congress or the State to pass, when they have\tbeen
\nfound\tjustified   by\tsubordinating\tvalid\tgovernmental
\ninterests,  a  prerequisite to constitutionality  which\t has
\nnecessarily involved a weighing of the governmental interest
\ninvolved.   See e.g. Schneider v. State, 308 U.S. 147,\t161;
\nCox v. New Hampshire; 312 U.S. 569; Prince v. Massachusetts,
\n321  U.S.  158;\t Kovacs v. Cooper,  336\t U.S.  77;  American
\nCommunications\tAssn.  v.  Douds, 339 U.S.  382;  Breard  v.
\nAlexandria 341 U.S. 622.”\n<\/p>\n
It   was  contended  on\t behalf\t of  the  petitioners\tthat
\nprohibition of interchangeability of quota between different
\nnewspaper,-,
\n(1)  Criminal Appeal No. 152 of 1970 decided on 15-9-1972.
\n(2)  366 U.S. 36, 50.\n<\/p>\n
822<\/span><\/p>\n
owned  by a common ownership unit, or different editions  of
\nthe  same newspaper owned by that unit is an  abridgment  of
\ntheir  fundamental  right  under Art.  19(1)(a).   A  common
\nownership unit is defined to mean a newspaper  establishment
\nor concern owning two or more newspapers including at  least
\none  daily  irrespective of the centers of  publication\t and
\nlanguage  of  such papers.  The newsprint is allotted  to  a
\nnewspaper.   In\t other\twords, the unit of  allotment  is  a
\nnewspaper.   Clause  2(a)  of the  Newsprint  Control  Order
\ndefines “consumer of newsprint”:\n<\/p>\n
\t      “consumer of newsprint means a printer or pub-
\n\t      lisher of newspapers, periodicals, text  books
\n\t      or   books  of  general  interest\t  who\tuses
\n\t      newsprint.”\n<\/p><\/blockquote>\n
The printer or publisher of each newspaper owned by a common
\nownership  unit\t is a separate consumer and it\tis  to\tthat
\nconsumer  that the quota is allotted.  The  application\t for
\nquota  made  by\t the common  ownership\tunit  specifies\t the
\nentitlement  of\t each newspaper owned by it,  and  quota  is
\ngranted to each newspaper on that basis.  If it were open to
\na  common ownership unit to use the quota allotted  for\t one
\nnewspaper  owned  by it for another newspaper,,\t or,  for  a
\ndifferent   edition  of\t the  same  newspaper,\tthat   would
\nfrustrate  the\twhole  scheme of  rationing.   If  a  common
\nownership  unit\t were  to  use the  quota  allotted  to\t one
\nnewspaper   for\t another  newspaper  owned  by\tit,    could
\ndiscontinue one newspaper and use its quota for another\t and
\nthus  secure an advantage over individual units owning\tonly
\none  newspaper.\t  It  is  on the basis\tof  page  level\t and
\ncirculation that quota is allotted to a newspaper and to say
\nthat it is open to a common ownership unit to use the  quota
\nfor a different newspaper owned by it or a different edition
\nof  the\t same newspaper would be tantamount to\tsaying\tthat
\nsince  the common ownership unit gets the ownership  of\t the
\nquota, it can use the quota for a newspaper owned even by  a
\ndifferent  proprietor.\tI do not think that the\t prohibition
\nagainst\t  interchangeability   of  quota   among   different
\nnewspapers owned by a common ownership unit is violative  of
\nArt.   19   (1)\t (a).\tIn  my\t opinion,   prohibition\t  of
\ninterchangeability  has\t nothing to do with  Art.  19(1)(a).
\nThat a commodity rationed to a Unit must be utilized by that
\nUnit  and no other unit is, I think, a regulation  necessary
\nfor the successful working of any system of rationing.
\nIt  was\t then contended for the petitioners  that  a  common
\nownership unit is not permitted to start a new newspaper  or
\na  new\tedition of an existing newspaper even out  of  their
\nauthorized quota whereas a person owning no other  newspaper
\ncan  start a newspaper and obtain a quota for the same,\t and
\nthat this offends the fundamental right under Art.  19(1)(a)
\nof  the\t common\t ownership units.  That\t there\tis  a  valid
\nclassification\tbetween a person owning no newspaper  and  a
\ncommon\townership unit owning two or more newspapers  cannot
\nbe denied.  Any person desiring to
\n823<\/span>
\nexpress\t himself  by  the medium of a  newspaper  cannot  be
\ndenied\tan opportunity for the same.  The  right  guaranteed
\nunder  Art. 19 (1)(a) has an essentially individual  aspect.
\nA   common  ownership  unit  has  already  been\t given\t the
\nopportunity  to express itself by the media of two  or\tmore
\nnewspapers.   If  a  common ownership unit were\t to  go on
\nacquiring or sponsoring new newspapers and if the claim\t for
\nquota for all the newspapers is admitted, that would  result
\nin concentration of newspaper ownership and will  accelerate
\nthe  tendency  toward monopoly in  the\tnewspaper  industry.
\nWhen the prohibition against interchangeability of newsprint
\nquota  between\tor among the newspapers owned  by  a  common
\nownership  unit is found valid, the restriction\t imposed  on
\ncommon ownership unit to bring out a new newspaper from\t its
\nauthorised quota must be held to be valid and not offending
\nArt. 19(1) (a).\t If the quota allotted for a newspaper owned
\nby  the common ownership unit cannot be used for  any  other
\nnewspaper, it stands to reason to hold that the\t prohibition
\nagainst bringing out a new newspaper cannot be challenged as
\nviolative  of  Art. 19(1) (a).\tNo doubt, if the  system  of
\nrationing were not there, it would be open to any person  to
\nown  or\t conduct  any number of newspapers  but,  since\t the
\nquantity of newsprint available for distribution is limited,
\nany system of rationing must place some limitation upon\t the
\nright of a person to express himself through newspapers.
\nMr. M. K. Nambiar, appearing for “The Hindu”, contended that
\nthe Newsprint Policy is not law, that it is only an adminis-
\ntrative\t direction  with no statutory backing  and  so,\t the
\nrestrictions which the policy impose are not binding.
\nThe  Newsprint Policy was issued by the Central\t Government,
\nand  the  Chief\t Controller  of\t Imports  and  Exports,\t  as
\nAdditional  Secretary to Government, has  authenticated\t it.
\nThe  Newsprint policy was placed before both the  Houses  of
\nParliament.   In  Joint\t Chief\tController  of\tImports\t and
\nExports, Madras v. M\/s.\t Aminchand Mutha,<\/a> etc.(1) this Court
\nsaid :\n<\/p>\n
\t      authorities  in the matter of granting  import
\n\t      licences,\t  the  Central\t Government   issued
\n\t      certain  administrative  instructions  to\t  be
\n\t      followed by the licensing authorities.”\n<\/p><\/blockquote>\n
The  Import Trade Policy has been characterized as a  notice
\ngiving\tinformation  to\t the  public  as  to  the  principle
\ngoverning,  the issue of licence for import of goods  for  a
\nspecified  period  (see\t East  India  Commercial  Co.\tLtd.
\nCalcutta   and\t Another  v.  The  Collector   of   Customs,
\nCalcutta<\/a>(2):  Shah,  J. speaking for the Court in  Union  of
\nIndia  and  Others v. M\/s.  Indo Afghan Agencies  Ltd.<\/a>\t3  )
\nsaid:\n<\/p>\n
(1)  [1966] 1 S.C.R. 262, 266-68.\n<\/p>\n
(2)  [1963] 3 S.C.R. 338, 371-2.\n<\/p>\n
(3) (1968) 2 S.C.R. 366, 377.\n<\/p>\n
824<\/span><\/p>\n
.lm15
\nCourt  has  held that Courts have the power  in\t appropriate
\ncases  to compel performance of the obligations\t imposed  by
\nthe schemes upon the departmental authorities. . . . ”
\nEven if the Newsprint Policy is administrative in character,
\nit is capable of founding rights and liabilities.  Generally
\nspeaking, it is true that an administrative order can confer
\nno  justiciable\t rights or impose duties  enforceable  in  a
\nCourt.\t But  it can confer rights and impose  duties.\t The
\nlimit within which such rights and duties will be recognised
\nand enforced has been stated by an eminent author:\n<\/p>\n
\t      “Let us take one of Mr. Harrison’s  instances,
\n\t      a regulation from the British War Office\tthat
\n\t      no  recruit shall be enlisted who is not\tfive
\n\t      feet  six inches high.  Suppose  a  recruiting
\n\t      officer musters in a man who is five feet five
\n\t      inches only in height, and pays him the King’s
\n\t      shilling\t; afterwards the officer is sued  by
\n\t      the   Government\tfor  being  short   in\t his
\n\t      accounts;\t among other items he claims  to  be
\n\t      allowed  the shilling paid to  the  undersized
\n\t      recruit.\tThe Court has to consider and  apply
\n\t      this  regulation and, whatever its effect\t may
\n\t      be,  that\t effect will be given to it  by\t the
\n\t      court  exactly  as effect will be given  to  a
\n\t      statute  providing  that\tmurderers  shall  be
\n\t      hanged,  or  that\t last wills  must  have\t two
\n\t      witnesses.\n<\/p><\/blockquote>\n
It  was\t contended  on behalf of the  petitioners  that\t the
\ndirection  contained in the Newsprint Policy as regards\t the
\nutilization  of.  the newsprint after the allotment  of\t the
\nquota  is ultra vires the powers of the licensing  authority
\nissuing the same.  It is said that after newsprint has\tbeen
\nimported,  there  was no Ion any power left in\tthe  Central
\nGovernment or in the Chief Controller of Imports and Exports
\nto  direct  the\t manner\t in which  it  should  be  utilized.
\nCl.5(1) of the Imports (Control) Order, 1955 provides;\n<\/p>\n
\t      “5. Conditions of Licenses : (1) The licensing
\n\t      authority\t issuing a licence under this  Order
\n\t      may  issue the same subject to one or more  of
\n\t      the conditions stated below :-\n<\/p><\/blockquote>\n
\t      (i)   that  the goods covered by\tthe  licence
\n\t      shall not be disposed of, except in the manner
\n\t      prescribed  by  the  licensing  authority,  or
\n\t      otherwise\t dealt\twith,  without\tthe  written
\n\t      permission  of the licensing authority or\t any
\n\t      person duly authorised by it;”<\/p><\/blockquote>\n
\t      (1) John Chimpman Gray, the Nature and Sources
\n\t      of the Law, Second Edition
\n\t      825<\/span>
\nIn  Abdul  Aziz Aminuddin v. State of  Maharashtra<\/a>(1),\tthis
\nCourt said that the power conferred under s. 3(1) of the Act
\n(Imports and Exports (Control) Act, 1947) is not  restricted
\nmerely to prohibiting or restricting imports at the point of
\nentry  but  extends  also  to  controlling  the\t  subsequent
\ndisposal of the goods imported and that the person  licensed
\nto  import  goods  would be amenable to the  orders  of\t the
\nlicensing  authority with respect to the way in which  those
\ngoods are to be utilized.  This dictum was approved by\tthis
\nCourt  in State of West Bengal v. Motilal  Kanoria<\/a>(2).\t See
\nalso the observation of Sarkar, J. in East India  Commercial
\nCo.  Ltd., Calcutta and Another v. The Collector of  Customs
\nCalcutta<\/a>(3),  at  p.  348.   Even  if  it  be  assumed\tthat
\nGovernment  or the Chief Controller of Imports\tand  Exports
\nhas  no\t power under cl. 5(1)(i) of  the  Imports  (Control)
\nOrder,\t1955,  to issue directions as regards  the  mode  of
\nutilization of newsprint after its import, it is clear\tthat
\nthe Government has power by virtue of the provisions of\t s.3
\nof the Essential Commodities Act, 1955, to pass an Order  as
\nregards\t the  utilization of newsprint, as newsprint  is  an
\n,essential  commodity’ under that Act (see s. 2(vii) of\t the
\nAct).\n<\/p>\n
The  only  other point which remains  for  consideration  is
\nwhether clauses 3(3) and 3(A) of the Newsprint Control Order
\nviolate Art. 14 of the Constitution.  None of the provisions
\nof  the\t Essential Commodities Act, 1955, is  challenged  as
\nultra  vires the Constitution.\tThe Newsprint Control  Order
\nwas  passed  under s. 3 of the\tEssential  Commodities\tAct,
\n1955.  Sections 3 and 4 of this Act are in pari materia with
\nsections  3  and  4 of\tthe  Essential\tSupplies  (Temporary
\nPowers) Act, 1946.  These provisions were challenged, on the
\nground of excessive delegation of legislative power, in\t the
\ncase of Harishankar Bagla and Another v. The State of Madhya
\nPradesh<\/a> (4) . But this Court said that the preamble and\t the
\nbody of the sections sufficiently formulate the\t legislative
\npolicy. that the ambit and character of the Act is such that
\nthe  details  of  that\tpolicy can only\t be  worked  out  by
\ndelegating them to a subordinate authority within the  frame
\nwork-  of  that\t policy and that s. 3  was  valid.   And  as
\nregards s. 4 the Court said that the section enumerates\t the
\nclasses\t of persons to whom the power could be delegated  or
\nsub-delegated  by  the\tCentral Government  and\t it  is\t not
\ncorrect\t to  say that the instrumentalities  have  not\tbeen
\nselected  by  the  Legislature itself.\t Section  4  of\t the
\nEssential Commodities Act, 1955, provides that an order made
\nunder  s.  3 may confer powers and impose  duties  upon\t the
\nCentral\t Government or the State Government or officers\t and
\nauthorities  of the Central Government or State\t Government,
\nand  may  contain directions to any State Government  or  to
\nofficers  and authorities thereof as to the exercise of\t any
\nsuch powers or the discharge of
\n(1)  [1964] 1 S.C.R. 830, 837-8.\n<\/p>\n
(2)  [1966] 3 S.C.R. 933.\n<\/p>\n
(3)  [1963] 3 S.C.R. 338, 371-72.\n<\/p>\n
(4) [1955] 1 S.C.R. 380, 388-9.\n<\/p>\n
826<\/span><\/p>\n
any such duties.  It was, therefore, open to the  Government
\nto  confer such powers upon the “controller” as\t defined  in
\nthe Newsprint Control Order, 1962:\n<\/p>\n
\t      “2(b) Controller means the Chief Controller of
\n\t      Imports  and Exports and includes any  officer
\n\t      appointed\t  by  the  Central   Government\t  to
\n\t      exercise\tthe powers of the  Controller  under
\n\t      this Order.”\n<\/p><\/blockquote>\n
Sub-clause  (3A)  was introduced in cl. 3 of  the  Newsprint
\nControl\t Order,\t 1962, for a particular purpose.   There  is
\nonly a limited quantity of white printing paper.  In view of
\nthe shortage of white printing paper in the country, it\t was
\nconsidered  necessary by the Government to restrict its\t use
\nby consumers of newsprint who were getting quota of imported
\nnewsprint.    In  fact,\t for  newspapers  and\tperiodicals,
\nnewsprint  is  the more acceptable raw material\t than  white
\nprinting paper.\t It was found that some of the more affluent
\npapers\thad started drawing heavily on the limited  quantity
\nof  white  printing paper available, thereby  causing  great
\nhardship  to  the  other consumers of  this  commodity\tlike
\nCentral\t and  State Governments,  text-book  publishers\t and
\nstudents.   It was with a view to meet this  situation\tthat
\nrestriction on its use by a consumer of newsprint other than
\nthe person specified therein was imposed.
\nThe argument that unregulated discretion has been  conferred
\nunder  sub-clauses  3 and 3A of cl. 3 is not  correct.\t The
\npreamble and the provisions of the Essential Commodities Act
\nfurnish\t sufficient guidance for the exercise of the  powers
\nconferred.   It is impossible, in the nature of\t things,  to
\nspecify\t with greater particularity the guidelines  for\t the
\nexercise  of the powers conferred under these  clauses.\t  If
\nthe  conferment of the power upon the Government under s.  3
\nis  valid and is not open to attack under Art. 14,  1  think
\nthe power conferred upon the sub-delegate is also valid.
\nIt is not necessary for me to express any opinion as regards
\nthe maintainability of the writ petitions on the ground that
\nthe consumers of the newsprint in question are not  citizens
\nand I do not express any opinion.\n<\/p>\n
I would dismiss the petitions without any order as to costs.
\nBEG, J. The Writ Petitions before us challenge what is\tdes-
\ncribed\tas “News Print Policy” notified for the period\tfrom
\nApril,\t1971 to March, 1972.  As the  impugned\tNotification
\ndoes  not  mention the provision of law under which  it\t was
\nissued,\t we have to scrutinise its contents to discover\t the
\nauthority  for\tits  promulgation.   It\t is  headed  “Public
\nNotice” on “Import Trade Control”.  The subject is given  as
\n“Import\t Policy for News Print”.  The “Policy” is  contained
\nin a schedule annexed to the Notice.  The first of the
\n827<\/span>
\nsix  columns of the Schedule gives the serial number of\t the
\nitem involved which is 44\/V of the I T C Schedule.  Volume I
\nof the .”Red Book” on Import Trade Control Policy, issued by
\nthe  Ministry of Foreign Trade, mentions, against item\t44\/V
\nfor  white  printing  paper, that import  policy  for  “News
\nPrint”\tWill be announced later.  The impugned items,  found
\nin the remarks’ column, contain that announcement applicable
\nfrom  April,  1971  to March, 1972.   A\t subsequent  similar
\nnotification  dated 11-41972 shows that\t identically  worded
\nterms  were to be applicable to the period from April,\t1972
\nto  March,  1973,  and\tthese  are  also  assailed  by\t the
\npetitioners.\n<\/p>\n
Apparently,  the impugned remarks constitute conditions\t for
\nthe  import  of\t quotas\t of  news  print  assigned  to\t the
\nlicensees.   They  are meant to be obeyed if  the  licensees
\nwant  their quotas.  The implication of such  an  imposition
\nclearly\t is that the licences could be revoked if  terms  of
\ntheir grant are not complied with apart from other  possible
\nconsequences in the future.  It is alleged that these  terms
\ninterfere  with\t the fundamental rights\t of  petitioners  to
\nfreely\texpress their opinions through their newspapers\t and
\nto  carry on the manufacture and sale of newspapers  to\t the
\npublic.\t If, however, these terms and conditions do not fall
\nunder  any provision of law but interfere with the  exercise
\nof petitioners’ fundamental rights, the question of  testing
\ntheir reasonableness will not arise,.\n<\/p>\n
What is termed “policy” can become justiciable when it exhi-
\nbits   itself  in  the\tshape  of  even purported   “law”.
\nAccording  to Article 13(3) (a) of the\tConstitution,  “law”
\n‘Includes “any Ordinance, Order, bye-law, rule,\t regulation,
\nnotification,  custom  or usage having in the  territory  of
\nIndia  the force of law”.  So long as policy remains in\t the
\nrealm of even rules framed for the guidance of executive and
\nadministrative authorities it may bind those authorities  as
\ndeclarations of what they are expected to do under it.\tBut,
\nit cannot bind citizens unless the impugned policy is  shown
\nto have acquired the force of “law”.  Mr. Nambiar, appearing
\nfor  the  Hindu\t Newspaper,  has,  therefore,  assailed\t the
\nimpugned  items\t of  the news print control  policy  on\t the
\nground,\t inter-alia,  that  the fundamental  rights  of\t the
\npetitioners  represented  by  him  cannot  be  curtailed  by
\nanything less than “law”.\n<\/p>\n
For  the reasons given by both my learned brethren  Ray\t and
\nMathew\tthe impugned items of what is called the  “Newsprint
\nPolicy”\t seem to me to be intended to have the force of\t law
\nwhich,\tif not observed by the petitioners, will impede\t and
\njeopardise the exercise by them of their fundamental rights.
\nThe intention behind the publication of the Newsprint Policy
\nwas obviously to bind the petitioners by the conditions laid
\ndown  in  the  remarks’ column.\t It had,  therefore,  to  be
\nbrought\t under some provision of law which  could  authorise
\nthe laying down of such binding conditions upon
\n828<\/span>
\nthose  who  run the newspapers and want\t to  either  express
\ntheir  opinions\t freely\t or to\tcarry  on  their  businesses
\nwithout\t let or hindrance.  I, seems to me that\t this  Court
\nshould\tnot  hesitate to remove such  restrictions  if\tthey
\npurport\t to  have  the force of law. even if  they  are\t not
\n“law”,\tprovided  they have the effect\tof  restricting\t the
\nexercise  of  fundamental  rights.   This  effect  the\tres-
\ntrictions  certainly have had and will have unless they\t are
\nremoved\t  by  us.   According  to  the\tpetitioners,   their
\nobservance has entailed such heavy losses to them that\tthey
\nmay  have to stop doing their business if  the\trestrictions
\ncontinue.\n<\/p>\n
It is difficult to over-emphasize the importance of  Freedom
\nof  the Press as one of the pillars of a Government “of\t the
\npeople,.  by the people, and for the people”.  I  may  quote
\nwhat  Lord Bryce said in The American Commonwealth (New\t and
\nRevised Edition) (pp. 274, 275, 367):\n<\/p>\n
\t       “The  more  completely  popular\t sovereignty
\n\t      prevails\tin  a  country,\t so  much  the\tmore
\n\t      important\t is  it that the organs\t of  opinion
\n\t      should be adequate to its expression,  prompt,
\n\t      full, and unmistakable in their utterances****
\n\t      The  press,  and\tparticularly  the  newspaper
\n\t      press,  stands by common consent\tfirst  among
\n\t      the organs of opinion* * * The conscience\t and
\n\t      common  sense  of the nation as a\t whole\tkeep
\n\t      down  the\t evils\twhich have  crept  into\t the
\n\t      working  of the Constitution, and may in\ttime
\n\t      extinguish them.\tThat which, carrying a\tonce
\n\t      famous  phrase,  we  may call  the  genius  of
\n\t      universal\t publicity,  has  some\tdisagreeable
\n\t      results,\tbut the wholesome ones\tare  greater
\n\t      and  more numerous.   Selfishness,  injustice,
\n\t      cruelty,\ttricks and jobs of all\tsorts,\tshun
\n\t      the  light; to expose them is to defeat  them.
\n\t      No serious evils, no rankling sort in the body
\n\t      politic, can remain long concealed, and,\twhen
\n\t      disclosed,  it is half destroyed.\t So long  as
\n\t      the  opinion  of a nation is sound,  the\tmain
\n\t      lines of its policy cannot go far wrong”.\n<\/p><\/blockquote>\n
John Stuart Mill, in his essay on “Liberty”, pointed out the
\nneed for allowing even erroneous opinions to be expressed on
\nthe  ground  that  the\tcorrect\t ones  become  more   firmly
\nestablished by what may be called the ‘dialectical’  process
\nof a struggle with wrong ones which exposes errors.  Milton,
\nin his “Areopagitica” 1 644) said:\n<\/p>\n
\t      “Though  all  the winds of doctrine  were\t let
\n\t      loose  to play upon the earth, so Truth be  in
\n\t      the field, we do injuriously by licensing\t and
\n\t      prohibiting to misdoubt her
\n\t      829<\/span>
\n\t      strength.\t  Let  her  and\t Falsehood  grapple;
\n\t      whoever knew Truth put to the worse, in a free
\n\t      and  open\t encounter ? ….. I Who  knows\t not
\n\t      that  Truth is strong, next to  the  Almighty;
\n\t      she  needs  no  policies,\t no  stratagems,  no
\n\t      licensings  to make her victorious; those\t are
\n\t      the  shifts  and\tdefenses  that\terror  makes
\n\t      against her power……..\n<\/p><\/blockquote>\n
Political  philosophers and historians have taught  us\tthat
\nintellectual advances made by our civilisation would  have
\nbeen  impossible without freedom of speech  and\t expression.
\nAt any rate, political democracy is based on the  assumption
\nthat  such  freedom  must be  jealously\t guarded.   Voltaire
\nexpressed  a democrat’s faith when he told an  adversary  in
\nargument  : “I do not agree with a word you say, but I\twill
\ndefend\tto  the death your right to say it”.   Champions  of
\nhuman freedom of thought and expression throughout the ages,
\nhave  realised\tthat intellectual paralysis  creeps  over  a
\nSociety which denies, in however subtle a form, due  freedom
\nof thought and expression to its members.\n<\/p>\n
Although, our Constitution does not contain a separate guar-
\nantee  of  Freedom of the Press, apart from the\t freedom  of
\nexpression  and opinion contained in Article. 19(1)  (a)  of
\nthe Constitution, yet. it is well recognised that the  Press
\nprovides the principal vehicle of expression of their  views
\nto  citizens.  It has been said : “Freedom of the  Press  is
\nthe  Ark  of  the  Covenant  of\t Democracy  because   public
\ncriticism is essential to the working, of its  institutions.
\nNever has criticism been more necessary than today, when the
\nweapons\t of  propaganda are so strong and so  Subtle.\tBut,
\nlike other liberties, this also must be limited.”
\nThe   exent  of\t permissible  limitations  on\tfreedom\t  of
\nexpression  is\talso  indicated by  our\t Constitution  which
\ncontains  the fundamental law of the land.  To that law\t all
\nGovernmental  policies,\t rules and regulations,\t orders\t and
\ndirections,  must conform so that there is “a Government  of
\nlaws  and  not of men” , or, in other  words,  a  Government
\nwhose policies are based on democratic principles and not on
\nhuman  caprice\tor  arbitrariness.   Article  19(2)  of\t the
\nConstitution.\trequires  that\tGovernmental  action   which
\naffects freedom of speech and expression of Indian  citizens
\nshould\tbe  founded on some “law” and also that\t such  “law”
\nshould restrict freedom of expression and opinion reasonably
\nonly “in the interests of the sovereignty and integrity\t of
\nIndia,\tthe security of the St-ate, friendly relations\twith
\nforeign\t states,  Public order, decency or morality,  or  in
\nrelation  to contempt of court, defamation or incitement  to
\nan  offence.” Although, the ambit of restrictions which\t can
\nbe  imposed by “law” on freedom to carry on any\t occupation,
\ntrade, or business, guaranteed by Article 19 (1) (g) of\t the
\nConstitution, is wider than that of res-\n<\/p>\n
830<\/span><\/p>\n
trictions  on freedom of speech and expression,\t yet,  these
\nrestrictions  have  also to be limited to  those  which\t are
\nreasonably necessary “in the interest of the general public”
\nas contemplated by Article 19(6) of the Constitution.
\nPermissible  restrictions  on any  fundamental\tright,\teven
\nwhere  they  are imposed by duly enacted law-  must  not  be
\nexcessive, or, in other words, they must not go beyond\twhat
\nis  necessary to achieve the objects of the law under  which
\nthey  are  sought  to  be  imposed.   The  power  to  impose
\nrestrictions on fundamental rights is essentially a power to
\n“regulate”   the  exercise  of\tthese  rights.\t  In   fact,
\n“regulation”  and  not\textinction of that which  is  to  be
\nregulated  is  generally speaking the extent to\t which\tper-
\nmissible restrictions may go in order to satisfy the test of
\nreasonableness.\t  The  term  “regulate”\t has  come  up\t for
\ninterpretation\ton several occasions before American  Courts
\nwhich have held that the word “regulate” means “to adjust by
\nrule,  method,\tor established mode; to direct\tby  rule  or
\nrestriction;  to subject to governing principles  or  laws”.
\n(See : Words and Phrases, VoL 36, p. 687 by West  Publishing
\nCo.). I do not see any reason to give a different meaning to
\nthe term “regulation” when we use it.\n<\/p>\n
In the cases before us, I confess that it is very  difficult
\nto  make out the real object of the restrictions imposed  by
\nthe  impugned  items of Newsprint  Policy.   The  Additional
\nSolicitor  General  did\t not contend  that  these  items  of
\nnewsprint import policy were not meant to have the force  of
\nrules for conducting business or regulating actions  binding
\nupon  the  petitioners or of “law”.  He\t sought\t to  justify
\nthem,  in  so  far  as they affect  freedom  of\t speech\t and
\nexpression,  as\t either\t necessary incidents  of  import  of
\nessential   commodities\t and  the  allocation\tof   foreign
\nexchange, which is limited, between them, or, as a method of
\nensuring  a  more  widely spread freedom  of  expression  by
\nstriking  at  monopolisation of opinion by  large  newspaper
\nconcerns.  I am unable to see how these restrictions,  after
\nquotas have, been allotted on the basis of past\t performance
\nand respective needs of each newspaper concern, could  fall
\nwithin\tthe  objects  of  any import  policy  found  in\t any
\nstatutory provision or order.  And, so far as any attempt to
\ncontrol .any monopolistic tendencies in the newspaper  world
\nis concerned, no material was placed before us to enable  us
\nto  see\t how  the impugned conditions  of  import  licences,
\nsought\tto be imposed by the entries in the remarks  columns
\nof the notified Import Trade Control Policy, are related  to
\nany law directed against monopolisation.  The impugned items
\nin  the declaration of newsprint policy, which are meant  to
\nbind  those  who  had  obtained\t import_licences,  were\t not
\nimposed under any law made to check monopolies.\t It was also
\nnot   possible\tfor  me\t to  see  the  relevance  of   these
\nrestrictions
\n831<\/span>
\nto  any of the objects of either the  Essential\t Commodities
\nAct,  1955 or orders passed thereunder or to the Import\t and
\nExport\t(Control) Act of 1947 or to orders made\t thereunder.
\nThe  objects  and  ambits of the  two  enactments  mentioned
\nabove,\twhich were relied upon. on behalf of the Union,\t are
\nfairly clear and well defined.\n<\/p>\n
No  doubt  clause 3 of the Newsprint  Control  Order,  1962,
\nissued\tin exercise of powers conferred by Section 3 of\t the
\nEssential   Commodities\t  Act\t1955   lays   down   certain
\nrestrictions  “on  acquisition,\t sale  and  consumption\t  of
\nnewsprint”.  The clause runs as follows :-\n<\/p>\n
\t      “(1)  No person other than an  importer  shall
\n\t      acquire\tnewsprint   except  under   and\t  in
\n\t      accordance with the terms and conditions of an
\n\t      authorisation  issued by the Controller  under
\n\t      this Order. ,
\n\t      (2)   No dealer in newsprint shall sell to any
\n\t      person newsprint of any description or in\t any
\n\t      quantity\tunless\tthe sale to that  person  of
\n\t      newsprint\t of  that  description\tor  in\t the
\n\t      quantity is authorised by the Controller.
\n\t      (3)   No\t consumer  of  newsprint,   in\t any
\n\t      licensing period, consume or use newsprint  in
\n\t      excess  of  the  quantity\t authorised  by\t the
\n\t      Controller from time to time.\n<\/p><\/blockquote>\n
\t      (3A)  No consumer of newsprint, other  than  a
\n\t      publisher\t of text books or books\t of  general
\n\t      interest,\t shall use any kind of\tpaper  other
\n\t      than newsprint except with the permission,  in
\n\t      writing, of the Controller.\n<\/p><\/blockquote>\n
\t      (4)   An authorisation under this clause shall
\n\t      be in
\n\t      writing\t in the form set out in Schedule II.
\n\t      (5)   In\tissuing an authorisation under\tthis
\n\t      clause,
\n\t      the  Controller  shall  have  regard  to\t the
\n\t      principles  laid\tdown in the  Import  Control
\n\t      Policy with respect of newsprint announced  by
\n\t      the Central Government from time to time”.\n<\/p><\/blockquote>\n
Section\t 3(1)  of the Essential Commodities Act,  1955\tlays
\ndown the condition for and objects of issue of orders  under
\nit in the following terms :-\n<\/p>\n
\t      “3(1) If the Central Government is of  opinion
\n\t      that it is necessary or expedient so to do for
\n\t      maintaining  or  increasing  supplies  of\t any
\n\t      essential\t commodity  or\tfor  securing  their
\n\t      equitable\t distribution  and  availability  at
\n\t      fair  prices,  or for securing  any  essential
\n\t      commodity\t for  the defence of  India  or\t the
\n\t      efficient conduct of military
\n\t      832<\/span>
\n\t      operations  it  may,  by\torder,\tprovide\t for
\n\t      regulating  or  prohibiting  the\t production,
\n\t      supply and distribution thereof and trade\t and
\n\t      commerce therein”.\n<\/p><\/blockquote>\n
Section\t 3(2)  lays  down that\t“without  prejudice  to\t the
\ngenerality .of the powers conferred by sub s. (1), an  order
\nmade   thereunder  may\tprovide”  inter\t alia  :  (a)\t“for
\nregulating by licences, permits or otherwise the, production
\nor  manufacture\t of any essential commodity;” and  (b)\t“for
\nregulating  by licences, permits or otherwise  the  storage,
\ntransport,  distribution,  disposal,  acquisition,  use\t  or
\nconsumption of any essential commodity”.
\nOrders\tissued under Section 3 of the Essential\t Commodities
\nAct 1955 must bear a reasonable relationship to the purposes
\nfor  which  such orders can be made.  Clause 3\t(5)  of\t the
\nNewsprint Control Order, 1962, presupposes the existence  of
\nsome  principles ,of “Import Control Policy” without  either
\nstating them or indicating how they are to be related to the
\nobjects\t of Section 3. Obviously, they cannot go beyond\t the
\nAct.  If the impugned terms and conditions could be  covered
\nby  the vague clause 3(5) ,of the News Print Control  Order,
\n1962,  1  venture to think that this provision of  the\tNews
\nPrint  Control\tOrder 1962 may itself have  to\tbe  declared
\ninvalid by us.\tI may also mention that there seems to be  a
\nserious flaw here inasmuch as no machinery for fair and just
\nadministrative decisions, so as to correlate conditions\t im-
\nposed  upon  competing\tclaimants for quotas  of  a  limited
\namount of news print to their needs and to the\trequirements
\nof   a\t law  which  is\t meant\tto  ensure   an\t  “equitable
\ndistribution”,\tis  provided here.  However, as\t it  is\t not
\nnecessary,  for\t the  purposes\tof  giving  relief  to\t the
\npetitioners, to pronounce on the validity of clause 3 (5) of
\nthe  Newsprint\tControl Order, 1962, I will,  in  conformity
\nwith the opinion expressed by my learned brother Ray on this
\naspect,\t refrain from deciding the question of the  validity
\nof its provisions in the cases before us.\n<\/p>\n
Section\t 3(1) of the Imports & Exports (Control) Act,  1947,
\nrestricts  the\tpower of the Central Government,  “by  order
\npublished  in the official Gazette”, to\t making\t “provisions
\nfor prohibiting, restricting or otherwise controlling in all
\ncases or in specified classes of cases, and subject to\tsuch
\nexceptions if any as may be made by or under the order :-\n<\/p>\n
\t      (a)   the import, export, carriage  coast-wise
\n\t      or  shipment in ships stores of goods  of\t any
\n\t      specified description;\n<\/p><\/blockquote>\n
\t      (b)   the\t bringing into any port or place  in
\n\t      India  of goods of any  specified\t description
\n\t      intended\tto  be taken out  of  India  without
\n\t      being  removed from the ship or conveyance  in
\n\t      which they are being carried”.\n<\/p><\/blockquote>\n
\t      833<\/span><\/p>\n
Clause\t3  of  the Imports (Control) Order,  1955,  made  in
\nexercise  of  powers conferred by Sections 3 and 4A  of\t the
\nImports & Exports (Control) Act, 1947, says :
\n.lm15
\n“3.  Restriction of Import of certain goods:–
\n(1)  Save  as  otherwise provided in this order,  no  person
\nshall  import  any  goods of the  description  specified  in
\nSchedule 1, except under, and in accordance, with a  licence
\nor  a  customs\tclearance  permit  granted  by\tthe  Central
\nGovernment or by any officer specified in Schedule 11”.
\nIt seems to me that the ambit of the conditions in a licence
\ncannot,\t under\tthe provisions of the  Imports\tand  Exports
\nControl\t Act,  after  newsprint has been  imported  under  a
\nlicence, extend to laying down how it is to be utilised by a
\nnewspaper  concern for its own genuine needs and  businesses
\nbecause\t this would amount to control of supply of  news  by
\nmeans of newsprint instead of only regulating its import.
\nThe  enactments\t and orders mentioned above seem  to  me  to
\nauthorise  Only the grant of licences for particular  quotas
\nto those who run newspapers on the strength of their  needs,
\nassessed on the basis of their past performances and  future
\nrequirements and other relevant data, but not to warrant  an
\nimposition  of\tfurther conditions to be  observed  by\tthem
\nwhile  they are genuinely using the newsprint themselves  in
\nthe  course  of\t carrying on a\tlegitimate  and\t permissible
\noccupation   and   business.\tThe   impugned\t restrictive
\nconditions thus appear to me to go beyond the scope of the
\nEssential  Commodities Act, 1955, as well as of the  Imports
\nand Exports (Control) Act, 1947.\n<\/p>\n
References   were  also\t made  by  the\tlearned\t  Additional
\nSolicitor  General  to\tthe  provisions\t of  the  Press\t and
\nRegulation  Books  Act,\t 1867,\tRegistration  of  Newspapers
\n(Central  Rules),  1956, and Press Council  Act,  1965,\t as
\nparts  of  a  possibly\tdesperate  attempt  to\tjustify\t the
\nimpugned items of newsprint control policy and to show\tthat
\nthey are covered by some provision of law.  I am unable\t to-
\nfind the legal authority anywhere here also for these  items
\nof Newsprint Control Policy.\n<\/p>\n
I think, for the reasons given above, that the argument\t put
\nforward\t oil  behalf  of the  petitioners  that,  after\t the
\nallocation   of\t  quotas  of  newsprint\t to  each   set\t  of
\npetitioners,  on  legally  relevant  material,\tthe  further
\nrestrictions sought to be imposed, by means of the  notified
\nnewsprint  control  policy, on the actual mode\tof  user  of
\nnewsprint  for\tpublication of information or views  by\t the
\nlicensees,  similar to those which were held by this  Court,
\nin Sakal
\n834<\/span>
\nPapers\t(P.) Ltd. & Ors.  Vs.  The Union of India(1), to  be
\ninvalid, are not covered by any law in existence, has to  be
\naccepted.   Hence,  it\tis  not even  necessary\t for  us  to
\nconsider whether they are reasonable restrictions  warranted
\nby   either   Article  19(2)  or  Article   19(6)   of\t the
\nConstitution.\tThey must first have the authority  of\tsome
\nlaw  to\t support  them before the  question  of\t considering
\nwhether they could be reasonable restrictions on fundamental
\nrights of the petitioners could arise.\n<\/p>\n
1,  therefore, concur with the conclusions reached  and\t the
\norders proposed by my learned brother Ray.
\nG.C.\n<\/p>\n
(1) [1962] 3 S.C.R. 842.\n<\/p>\n
499 Sup. CI\/73–25,00–15-4-74–GIPF.\n<\/p>\n
835<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972 Equivalent citations: 1973 AIR 106, 1973 SCR (2) 757 Author: S Sikri Bench: Sikri, S.M. (Cj), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah PETITIONER: BENNETT COLEMAN & CO. & ORS. Vs. […]<\/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-95288","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bennett-coleman-co-ors-vs-union-of-india-ors-on-30-october-1972\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bennett Coleman & Co. & Ors vs Union Of India & Ors on 30 October, 1972 - 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