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Case Comment: Sakal Papers Ltd v/s The Union of India

The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error - John Stuart Mill[1]

Freedom of speech and expression has always been emphasized as an integral tool for the democratic working of society. Article 19(1)(a) of the Indian Constitution gives every citizen the right to freedom of speech and expression which also includes freedom of press.

The rights enumerated in this article are recognized as natural rights which are inherent in the status of the citizen. This right has a well-recognized connotation which means freedom to express one's opinions and beliefs. However, this right is not absolute as it is restricted by Article 19(2). J.S. Mill in his book On Liberty regarded liberty of conscience and liberty to express and publish one's opinions as essential ingredients for a meaningful life and for the pursuit of one's own good. His defense of freedom of thought and expression was one of the most influential and eloquent expositions in Western intellectual traditions.[2]

Freedom of press is one of the most cherished rights in democratic countries. The growth of press and development of representative democracy is so intertwined that the press has started been getting recognized as an institutional limb of modern-day democracies.

Newspapers hold a lot of value as they not only present facts but also interpret the same through its editorial section and also propagate new ideas and ideologies. They are supposed to protect public interests by highlighting the misdeeds, failures, and lapses of government and other governing bodies. Therefore press/media has rightly been described as the fourth pillar of democracy.

Freedom of press consists of numerous rights and one of them is the right to freedom of publication which means dissemination and circulation of news. Freedom of circulation is as important as freedom of publication.

The newspapers should thus be free to publish or distribute any number of pages to any number of people. This was recognized in the case of Romesh Thapar v. State of Madras[3] where the court held that freedom of speech and expression includes freedom of propagation of ideas which is ensured by freedom of circulation. The court also pointed out that the freedom of speech and expression is the basis of all democratic organizations and is extremely important for its proper functioning.

The decision in this case positively stipulated that a newspaper can only be restrained by the State if it is made with a view to combating and preventing activities that could undermine or overthrow it. In the case of Brij Bhusan v. State of Delhi[4] it was held that imposition of pre-censorship on publication unless justified under Article 19(2) violates Article 19(1)(a).

The court in this case struck down an order issued under section 7(1)(c) of the East Punjab Safety Act, 1950 by which the editor and publisher of the newspaper were directed to submit for scrutiny before publication all news related to communal matters and views about Pakistan. The court observed that prohibiting any kind of publication on any matter in a newspaper relating to a specific subject would be abhorrent to the right to free speech and would not fall within the restrictions as imposed by Article 19(2)[5]. This view was reiterated in the case of Virendra v. State of Punjab[6].

In the case of Express Newspapers v. UOI[7] it was held that the adoption of measures calculated to curtail the circulation of information would be in breach of Article 19(1)(A) and thus restrict the scope of information dissemination or restrict its freedom to choose the means to exercise the right to freedom of speech or undermine its independence and encourage it to seek government assistance. As per article 19(2) it is not open to the state to curtail the freedom of speech of one for promoting the general welfare of a section of people.[8]

The main point of consideration in-front of the 5 judge bench of the Supreme Court in the case Sakal Papers Ltd. And Ors. Vs. The Union of India (UOI) [9] was to determine the interrelation between Article 19(1)(a) and Article 19(1)(g) of the Indian Constitution.

In the above-mentioned case the Newspaper (Price Page) Act, 1956 and the Daily Newspaper (Price and Page) order, 1960 was challenged as it empowered the Central Government to regulate the price of newspapers in relation to the number of pages and sizes and also to regulate the allocation of space for advertisements.

Both these acts affected the freedom of the press because its implication would lead to either reduction in the number of pages or rising of the price. In both scenarios, there would be a reduction in the volume and circulation of the newspaper which would result in a direct violation of freedom of press.

The state tried to justify its actions by calling it a reasonable restriction on the business activity of the newspaper agencies in the name of public interest so as to prevent unfair competition and rise of monopolies in the newspaper industry; which according to them would result in promoting freedom of speech and expression.

However, the court upheld the plea of the petitioners and held that the Newspaper Act and Newspaper Order was unconstitutional. In determining the issue at hand, a unanimous decision of the court held that the publication of a newspaper not only pertained to freedom of speech and expression under Article 19(1)(a) but also the conduct of business pursuant to Article 19(1)(g), which necessarily implied reasonable restrictions on the newspaper business.

Justice Mudholkar in the judgment made the unexceptionable remark that Article 19(1)(a) covered not only the content but also the volume of the newspaper (para 27); the impact of the contested regulation would be to directly limit the circulation and volume of the newspaper (para 32;35) and therefore this was a a clear case of infringement of freedom of speech and expression and will not be saved by exceptions in Article 19(2) (para 38).[10]

This is one of the landmark decisions that put forth freedom of press jurisprudence in India. It reinforced that restrictions on number of pages, prices, advertisements, newspaper circulation constitute a direct violation of Article 19(1)(a).[11]

This was reiterated in the case of Bennett Coleman & Co. v. Union of India[12] by the majority that freedom of speech and expression is not only in the volume of circulation but also in the volume of news. Justice Ray in his judgment said:
Freedom of the press entitles newspapers to achieve any volume of circulation.� He further said �Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content.[13]

As a result of this the court struck down the News Print Policy formulated by the government in year 1972- 1973 as being violative of Article 19(1)(a); the provisions mentioned in the policy did not fall under any of the exceptions mentioned in Article 19(2).

In all the above mentioned cases, the Supreme Court has considered volume of circulation as a vital part of the freedom of speech and expression and freedom of press. The test to be followed for determining whether legislation infringes the fundamental rights is to examine its effects and consequences and not just its object or subject matter.

The decision in Sakal Papers Ltd. And Ors. Vs. The Union of India (UOI) [14] is also cited in Indian Express Newspapers (Bombay) Private Ltd. v. Union of India[15] in which the court held that the role of the media as the fourth estate is invaluable to democracy and must, therefore, be protected from interference by the executive. An excessive burden of taxation cannot be placed on the media. It should be such that can be feasibly discharged. This would safeguard the press from taxes that could incapacitate the industry and regulates the government's ability to affect the supply of newspapers within the nation.

Sakal papers case and Bennett Coleman's case are the two important cases that posed constitutional controversies. Democracy is a fundamental value and the court in both the cases uses instrumental justifications over intrinsic ones i.e. role of free speech in maintaining a functioning effective democratic state.

In the first case[16], the court rejected the plea of the state that the restraints imposed by the acts were in the general interest of the public on the basis that Article 19 clause 2 did not allow the state to violate the freedom in interest of the general public. I agree with the court's rationale that the state cannot pass a law or an act which directly infringes one fundamental right in order to secure the better enjoyment of other, in this case which was the freedom guaranteed under Article 19(1)(g).

The court was correct in holding that for the purpose of regulating the commercial aspect of newspaper activities, freedom of speech and expression could not be restricted. It is therefore submitted that Sakal Papers is a correct judgment. The government in this case could have chosen a better way in order to curb unfair practices and to help small as well as newly established newspaper agencies.

In the second case[17], the Supreme Court by a majority decision struck down some of the restrictions mentioned in the Newsprint policy 1972-73 as infringing the fundamental right enshrined in Article 19(1)(a). I agree with the court's view that if a law lays down prohibitive burdens on the press that would restrict and regulate its circulation, prevents new newspapers from emerging, and forces the press to Government aid, it would end up violating Article 19(1)(a) and would fall outside the ambit of Article 19(2).

As a result, Indian government revised its newsprint allocation policies in order to undo what has been done and ensure that newspapers are free to use their quota to increase their circulation, number of pages or both. Thus it can be regarded as one of the momentous decisions of all times. It has not only reinforced the concept of free speech and expression but also expanded its horizon.

It is thus submitted that the two above mentioned cases are healthy precedents in the area of freedom of press. These two cases are strong precedents to ensure that the freedom of press is not invaded by means which run counter to the constitutional guarantee. The correctness of the judgment can be seen in the application of this rationale by the other courts and subsequent judgments.

  1. Mill, J. (1858). On Liberty. United Kingdom.
  2. Mukherjee, S. and Ramaswamy, S. (2017). A history of Political Thought- Plato to Marx. 2nd ed. p.412.
  3. Romesh Thapar v UOI AIR 1950 SC 124
  4. Brij Bhusan v. State of Delhi AIR 1950 SC 129
  5. Singh, M. (2017). V.N. Shukla's Constitution of India. 13th ed. Lucknow: Eastern Book Company, pp.137-138.
  6. Virendra v. State of Punjab AIR 1957 SC 896
  7. Express Newspapers v. UOI AIR 1958 SC 578
  8. Singh, M. (2017). V.N. Shukla's Constitution of India. 13th ed. Lucknow: Eastern Book Company.
  9. Sakal Papers (P) Ltd. V Union of India (AIR 1962 SC 305)
  10. Bhatia, G. (2019). Sakal Papers v. Union of India � I: Why do we have the freedom of speech?. [online] Indian Constitutional Law and Philosophy. Available at: / [Accessed 17 Apr. 2019].
  11. Global Freedom of Expression. (2019). Sakal Papers (P) Ltd. v. The Union of India - Global Freedom of Expression. [online] Available at: / [Accessed 17 Apr. 2019].
  12. Bennett Coleman & Co. v. Union of India (AIR 1973 SC 106)
  13. Garg, R. (n.d.). Freedom of the Press : A Critique of the Bennett Coleman Case. pp.2,3.
  14. Sakal Papers (P) Ltd. V Union of India (AIR 1962 SC 305)
  15. Indian Express Newspapers (Bombay) Private Ltd. v. Union of India (1985) 2 SCR 287
  16. Sakal Papers (P) Ltd. V Union of India (AIR 1962 SC 305)
  17. Bennett Coleman & Co. v. Union of India (AIR 1973 SC 106)
Written By: -Udita Dalal (LL.B. at O.P. Jindal Global University)

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