Dear readers, this article & others (Part-A, B & D-F) on “Freedom of Speech (Art. 19)” & related Supreme Court judgments on freedom of press, Romesh Thappar v. State of Madras, Indian Express (Bombay) Pvt. Ltd. v. Union of India (1985), Sakal Papers Ltd. v. Union of India (1962), Newsprint Control Order are informative with facts & will educate general public, students, teachers and help competitive aspirants in preparation of IAS, PCS, CLAT, AIBE, UGC/NET, and other exams.
Read other parts of articles on Freedom of Speech:
“Freedom of speech and expression is a natural and legal right of an individual to express one’s opinions, ideas & information freely and receive the same from others, without interference, through any means, media, and mode”. __ Dr. Md. Usmangani Ansari
“The Constitution is not an instrument for the Government to restrain the people, it is an instrument for the people to restrain the Government”.1 –Patrick Henry (1736-1799)
Read related articles:
- PIL Part-1: What is Public Interest Litigation (PIL)?
- PIL Part-2: PIL Filer, Importance, Weakness, Development Phases, and Growth of PIL in India
Supreme Court Judgments on Freedom of Press
The Supreme Court and High Courts with the help of their judicial creativity, wisdom, and craftsmanship have widened the scope of freedom of speech and expression by adding many elements through judgments in the following fields:
A. Freedom of Press
The press, being a powerful medium of mass communication, should be free to play its role in building a strong viable democratic society. Freedom of speech & expression includes the right to propagate one’s views through print media or electronic media e.g. radio, television, or social media subject to reasonable restrictions imposed under Article 19(2). Freedom of Press includes freedom of publication, freedom of circulation, and freedom against pre-censorship. The freedom of the press is strengthened by the following judgments:
1. Romesh Thappar v. State of Madras (1950)
It was amongst the earliest cases to be decided by the Supreme Court declaring “freedom of the press as an essential part of the right of freedom of speech and expression” 12. In this case, it was observed by Patanjali Sastri J. that the right to freedom of the press includes the right to propagate, publish, and circulate ideas and views. He also observed that it should be used as a first provision for the foundation of all democratic organizations as the free political discussion is an essential condition for the proper functioning of the process of Government.
2. Brij Bhushan v. State of Delhi (1950)
This case was related to the pre-censorship of media. In this case13, the validity of order imposing pre-censorship on an English Weekly of Delhi called “ORGANIZER“, which directed the editor and publisher of a newspaper to submit for scrutiny, in duplicate, before the publication, all communal matters, all the matters and news and views about Pakistan, including photographs, and cartoons, was struck down by the Supreme Court on the ground that it was a restriction on the liberty of the press. Other observations of the Hon’ble Supreme Court were:
- The apex court bench led by the Chief Justice of India has clarified that neither the judiciary nor the executive could have oversight of media content.
- Courts can be approached only after telecast or publication, by parties who may feel injured. There is a common-sense basis to this argument. The law intervenes in other matters based on a complaint about an offense having been committed. There is no reason why speech should be treated differently.
- Demands for the regulation of content are logically absurd because self-regulation is the only practical strategy, a position which the central government and the News Broadcasters Association have supported. Reporters, newsroom staff, and their editors should be trusted to do their job until and unless they breach that trust.
- If that happens, internal mechanisms should suffice to address the issue. At the next level, there are industry bodies that can exert real pressure on errant members.
- While the government has claimed the ability to monitor 1,500 news channels in real-time by the end of the year, it should limit itself to the observer’s role. Intervention in the absence of a complaint would amount to impugning Article 19 of the Constitution, as the Supreme Court had explained way back in 1950.
3. Ramji Lai Modi V. State of U.P. (1957)
In this case, a five-judge bench of the Supreme Court held that Section 295A14 was constitutionally valid since, under Article 19(2) of the constitution, it was a ‘reasonable restriction’ upon the freedom of speech, ‘in the interests of public order’. The core of the court’s reasoning was that the phrase ‘in the interests of’, as required by Article 19(2), was of very wide ambit, and allowed the state to make a variety of laws that bore some relation to maintaining public order. Therefore, a law providing for curbing the activities which tend to cause public disorder is valid. The Court held that:
“Section 295A only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and the section, which penalizes such activities, is well within the protection of clause (2) of Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed by Art. 19(1)(a).”
4. Virendra, K Narendra v. the State of Punjab and Anr’s (1957)
In these two petitions15 under Art. 32 of the Constitution of India the petitioners call in question the validity of the Punjab Special Powers (Press) Act, 1956 i.e. the impugned Act, and pray for an appropriate writ or order directing the respondents to withdraw the Notifications issued by them on the two petitioners as the editors, printers and publishers of two newspapers Pratap and Vir Arjun. The broad approach was questioned in this case where the public order was considered of extreme importance and was given priority over the freedom of the press. The Court observed:
“Quick decision and swift and effective action must be the essence of these powers and exercise. It must, therefore, be kept to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make an exercise of these powers justifiable and subject to judicial scrutiny will defeat the very purpose of the enactment.”
5. Sakal Papers Ltd. v. Union of India (1962)
In the first case16 the Daily Newspapers (Price and Page) Order, 1960, the Supreme Court held that the state could not make laws that directly affected the circulation of a newspaper for that would amount to a violation of freedom of speech. The right under Art 19(1)(a) extends not only to the matter which the citizen is entitled to circulate but also to the volume of circulation. This case came out of a challenge to the newsprint policy of the government which restricted the number of pages a newspaper was entitled to print. In this Papers case, The Court struck down the Government’s stand that it would help small newspapers to grow at the cost of bigger.” The Court held that:
“Though the State is entitled to regulate prices of newspapers to ensure a fair price to consumers of newspapers, and though the State may be entitled to control unfair competition among newspapers, as in the case of other business in India, it would be an unreasonable restriction on the freedom of the press, under Art 19(2), if such price fixation is calculated to curtail the circulation of particular newspapers. Thus, where unfair competition between the bigger and smaller newspapers is sought to be achieved by bringing the bigger units to the level of the smaller, by obliging the bigger newspaper to charge a minimum price according to the number of pages it chooses to print, the avowed object and direct effect of such regulation of price according to the volume of the newspaper is to curtail the circulation of a bigger newspaper because it would make the price so unattractively high for a class of people as is likely to deter it from purchasing such newspaper.”
6. Bennett Coleman and Co. Ltd. v. Union of India (1973)
In this case17 the validity of the Newsprint Control Order, the newsprint policy of the government, and its effects on the circulation of the newspaper. As there was a shortage of indigenous newsprint, its import was regulated by the Import Control Order 1955, issued under Section 3 and 4A of the Import and Exports Control Act 1947. The Government passed the Newsprint Control Order 1962 in the exercise of its powers under Section 3 of the Essential Commodities Act 1955.
The Object of the Newsprint Control Order was stated to be to make an equitable distribution of it at a fair price, but
- Clause 3 of the Newsprint Control Order placed restrictions on acquisition, sale, and consumption of Newsprint.
- Clause 3 (3) declared that no consumer of newsprint shall in any licensing period, consume, or use newsprint above the quantity authorized by the controller from time to time.
- Clause 3 (3A) further stated that no consumer of the newsprint, other than a publisher of textbooks of national interest should use any kind of paper other than newsprint except under written permission granted by the Controller.
The Central Government laid down its newsprint policy for the year 1972-73. This policy placed certain restrictions on the newspapers in the utilization of newsprint. They were:
- No newspaper or new edition can be started by a common ownership unit even within its authorized quota of newsprint.
- The maximum number of pages is fixed at 10. No, adjustment is allowed between circulation and the pages, to increase the pages.
- No interchangeability is permitted between different papers of common ownership units in a different edition of the same paper.
- 20% increase in page-level up to a maximum of 10 pages has been given to papers which are having a circulation of less than 1,00,000/- and 3% increase in case of papers having circulation above 1,00,000/-.
The petitioners, raised the question, whether the newsprint control policy was a “newsprint control or newspaper control”. According to Mr. Palkhivala who appeared for the petitioners, the measure was the “newspaper control with a degree of subtlety and sophistication“. Rationing of newsprint is newsprint control. When once the quota is fixed it results in post-quota restrictions or newspaper control.
In the instant case, the newspaper’s control was achieved by the measures adopted with common ownership units. The common ownership units were:
(i) prevented from bringing out newspapers or new editions of their dailies.
(ii) not permitted to have interchangeability of quota within their unit.
The Hon’ble Supreme Court held that the ceiling of pages affects the economic viability of the newspaper and also restricts the freedom of expression. The ceiling of pages not only entails the reduction of circulation and denudes the area of coverage of news and views but also results in the reduction of space allotted for advertisement. Fall in advertisements makes the paper economically unviable. Therefore, the validity of the Newsprint Control Order and the newsprint policy of the government was struck down by the Court.
7. Indian Express (Bombay) Pvt. Ltd. v. Union of India (1985)
In this case18, the petitioners challenged the increased import duty of Rs. 1000 plus 40% ad valorem per metric ton from a flat rate of Rs. 550/-per metric ton on newsprint under the Customs Tariff Act 1975 and the auxiliary duty under the Finance Act 1981, as modified by notifications under the Customs Act 1962 with effect from March 1, 1981.
The petitioners contended that the imposition of this duty had an adverse effect on costs and circulation and, therefore, had a crippling effect on freedom of speech and expression under Article 19(1)(a) of the Indian Constitution and the freedom to practice any trade or occupation under Article 19(1)(g). They also submitted that the classification of newspapers into small, medium and large newspapers violated the principle of non-arbitrariness under Article 14 of the Constitution (equality before law).
The Supreme Court of India directed the central government to re-examine its taxation policy by evaluating whether it constituted an excessive burden on newspapers. The petitioners, including newspaper companies, argued that an import duty led to an increased cost of newspapers and a drop in circulation, thereby adversely affecting freedom of speech and expression. The Court reasoned that a government can levy taxes on the publication of newspapers, however within reasonable limits to not encroach upon freedom of expression.
However, the Court held that the classification of newspapers into small, medium, and big for purpose of levying customs duty was not violative of Article 14. The distinction in the levy of duty was intended to help the small and medium newspapers to bring down their cost of production. These papers do not command large advertisement revenue.
Copyright © Writer (Dr. Md. Usmangani Ansari)