CASE COMMENT: BENNETT COLEMAN VS. UNION OF INDIA

INTRODUCTION

The makers of constitution have granted fundamental rights to every citizen in order to preserve democracy within the democratic country. Although Article 19(1) (a) of Constitution of India only mentions freedom of speech and expression but various significant judgments of Supreme Court[1] have set up that freedom of press is the essential part of the freedom of speech and expression. The Court rightly observed that freedom of the press has both quantitative and qualitative elements and hence any quantitative restriction leads to contravention of freedom of expression. Justice M.H. Beg who delivered the majority judgment was right in declaring the import policy void and outside the scope of Import Control Order, 1955 as the order only allowed for fixing of quotas and no additional interference. The fundamental rights had been given the superiority. As a result, government revised the policy and lifted all such discriminatory restrictions on the page limit, circulation, new newspapers and new editions of existing newspapers. The Judgment was undoubtedly, a milestone. However, it will always be an arguable topic to discuss the fate of writ petitions of those shareholders or editors who are foreigners and petitions were brought under the same circumstances.

FACTS:

In order to curb the shortage of newsprint in India, newsprints were being imported from foreign countries. Accordingly, some norms had been laid down as per which some restrictions were imposed on the import, acquisition, sale and consumption of newsprint. Some of the restrictions were as follow:

• No acquisition of newsprint without the authorisation of Controller.[2]
• Prohibition on the consumption of newsprint more than the specified quantity.[3]
• Permission from Controller was to be sought before using other kind of papers.[4]
• Later, the Import of newsprint Control Policy of 1972-73 placed further restrictions as:
• No new newspapers were to be started by ‘common ownership unit’ i.e., establishments owning more than two newspapers if at least one of which is a daily newspaper.
• Maximum number of pages for a newspaper was fixed i.e., 10.
• The increase in number of pages could be up to 20% for newspapers having less than ten pages but not to others.
• No new paper or new edition of a newspaper could be started by a ‘common ownership unit even within the permissible quota of newsprint.
• No adjustment was permitted between circulation and the pages so as to increase the number of pages beyond 10.
• No inter-changeability was allowed between different papers belonging to common ownership unit or even between different editions of the same paper.

Therefore, leading newspapers publishers Bennett Coleman & Co., The Hindustan Times Ltd., The Indian Express (Madurai) representing The Times of India, The Hindustan Times, The Indian Express and, the Hindu filed writ petitions in the Supreme Court under Article 32 of Indian Constitution. Various readers, newspaper-editors and shareholders also joined via writ petitions. They challenged several restrictions imposed on the newspapers as violation of their fundamental rights guaranteed under Article 19(1)(a).

ISSUES:

The Supreme Court decided the matter on the basis of consideration of following issues:

• Whether the companies as petitioners were conferred fundamental rights so that they could invoke Article 32 of Indian Constitution?
• Whether Article 358 of the Indian Constitution debarred any challenge on the ground of violations of fundamental rights?
• Whether the restriction imposed on import of newsprint under the Import Control Order, 1955 and further curbs on size and circulation of newspapers constituted a direct infringement of freedom of speech and expression under Article 19(1) (a) of the Constitution of India, 1950?
• Whether the Newsprint Policy of 1972-73 fell within the scope of clause 5(1) of the Import Control Order 1955 and thus, was valid?
• Whether sub-clauses 3 and 3A of clause 3 of the Newsprint Control Order, 1962 were violative of Article 19(1) (a) and Article 14 of the Constitution of India?
• Whether Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Arts. 19(1) (a) and Article 14 of the Indian Constitution, 1950? Whether the 1972-73 policy which allowed a 20 per cent increase only to daily newspapers whose number of pages was less than 10 and not to those newspapers having 10 or more than 10 pages was discriminatory and thus violated Right to equality guaranteed under Article 14 of Indian Constitution?

DECISION OF THE COURT:

The writ petitions got heard by a Bench of five judges and decided with the majority of 4:1 in the favour of petitioners. Only Justice Mathew favoured the government action and supported the Import policy of 1972-73.

(1) The first issue was about the maintainability of writ petition i.e., whether the petitioners being companies could invoke Article 32. The respondents argued that the companies, not being a citizen could not invoke fundamental rights under Article 19 (1) (a) as the same opinion was held by the Court in the cases of State Trading Corporation v. Commercial Tax Officer[5] and Tata Engineering and Locomotive Ltd. v. State of Bihar[6].   The Court rejected this objection as herein the petitioners were not only companies but also the shareholders newspaper editors and various readers.

(2) On the second issue, the Supreme Court said Art 358 could not debar this petition on the ground of suspension of Article 19 during the period of emergency (under Article 352) because herein the policy in question (Import Policy 1972-73) was a prolongation of the old newsprint policy that had been in operation from a decade till the proclamation of emergency in the year 1971.

(3) The Hon’ble Supreme Court observed that the government has the power to control the import of newsprint and thus restriction may be imposed in pursuance of the same provided it must be fair, just and equitable. Therefore, the restrictions on the number of pages, circulation of newspaper, advertisements, new editions of newspapers were ultravires and violative of Article 19(1)(a) of Constitution of India. 

(4) The contention of petitioners that the newsprint policy did not fall within the scope of clause 5(1) of Import control Order, 1955 and not valid, was disallowed by the Supreme Court after examining the records. However, on examining various restrictions imposed by Newsprint Policy of 1972-73 the Court found them ultravires and unconstitutional.

(5) The petitioners challenged the sub-clauses 3 and 3A of clause 3 of the Newsprint Control Order, 1962 as violative of Article 19(1) (a) and Article 14 of the Constitution of India on the grounds that:

• these clauses restrict the size, circulation and growth of a newspaper and not a reasonable restriction within the ambit of Article 19(2). (Violative of Article 19(1)(a))
• the powers given to the Controller are unregulated arbitrary and also it brought discrimination between newspapers and periodicals. (Violative of Article 14)

(6)  The Supreme Court held Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Control Policy, 1972-73 as violative of Arts. 19(1) (a) and 14 of the Constitution on the following basis:

• Remark V fixed the page limit of 10 was discriminatory for those 7 newspapers which were operating above 10 pages level. Also, it was a quantitative restriction in freedom of press and thus violative of Freedom of speech and expression.
• Remark VII which conferred permit to increase 20% of pages only to those newspapers operating within 10 pages and not to others were infringing Article 14 and 19 of the Constitution.
• The prohibition of adjustability between pages and circulation under Remark VIII was held to be unconstitutional as the denial of such adjustments had obstructed the quality, variety and standard of the daily newspapers and thus affected the freedom of press.
• Remark X was also held to be ultravires as it had prohibited a common ownership quota to start a new newspaper or new edition of an existing newspaper, which was discriminatory and a direct infringement of freedom of press under Article 19(1)(a).

Hence, the Supreme Court held restrictions imposed by Newsprint Control Policy of 1972-73 were outside the ambit and scope of Import Control Order, 1955 and hence void. 

 CONCLUSION:

The Supreme Court’s explanation over maintainability of the petitions seeks appreciation as it rightly applied the observation of Bank Nationalization case to uphold the rights of corporate bodies under Article32 when joined in by affected individuals to invoke their fundamental rights. A little appraisal must be made to the judgment delivered by J. Mathew also, who made the dissenting opinion and favoured the Import Policy of 1972-73 on the grounds of effective and efficient utilization of newsprint and also said it rather prevented the monopoly by few newspapers. It is right to say at some extent that the freedom of speech and expression does not connote those newspapers get a right to obtain any amount of newsprint. The Newsprint Control Policy was brought with the aim to ensure fair distribution of imported newsprint and promoting the small newspapers. In fact, it clearly appeared from this decision that few restrictions to freedom of speech and expression may be favoured by the Court. Saying further, it also seems that the policy of 1972-73 was intended to favour the newspapers of vernacular languages as the government might have felt threatened by the big English newspapers. However, the disapproval to such restrictive policy must be made when it leads to infringement of fundamental rights of big newspapers. It can be said that the purpose of the government through the policy of 1972-73 was failed by the Court order.      

Author(s) Name: Purti Srivastava (School of Law, Bennett University, Greater Noida)

References:

[1] Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578; Sakal Papers Ltd. & Ors. v. Union of India AIR 1962 SC 305

[2] Clause 3 of Newsprint Control Order, 1962.

[3] Clause 3(3) of Newsprint Control Order, 1962.

[4] Clause 3(3A) of Newsprint Control Order, 1962.

[5] State Trading Corporation v. Commercial Tax Officer, A.I.R. 1963 S.C. 1811.

[6] Tata Engineering and Locomotive Ltd. v. State of Bihar, A.I.R. 1965 S.C. 40.