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Case Analysis: Bennett Coleman v/s Union Of India

Democracy can thrive through vigilant eye of Legislature but also care and guidance of public opinion and press par excellence. Freedom of speech include right to propagate one's views through print media or any other communication channel e.g. radio, television subject to reasonable restrictions imposed under Article 19(2).

Bennett Coleman v. Union of India is a very important case when it comes to the freedom of press. The Supreme Court of India in this case held that the freedom of the press is an important facet of the fundamental right of the freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution of India.

The Idea of distributing scarce resources fairly through Control Orders is a very alluring one in theory. In actuality, it simply resulted in a booming parallel economy where prohibited goods were being sold on the black market at exorbitant prices. The negative effects of the state control policy, which resulted in a significant generation of black money, are still evident today. One of the things under control was newsprint. In this case, Newsprint Control's repressive control over newspapers and newspaper corporations was contested before the Supreme Court.

In the 1960s, India faced a shortage of newsprint. To meet this demand, newsprint was imported from foreign countries. The Newsprint Control Order, 1962 was made under the Essential Commodities Act, 1955 and its import was regulated by the Import Control Order, 1955.

The Newsprint Policy of 1972-73 added some restrictions, which are as follows:
  1. No new newspapers or new editions may be started by a particular company owning more than two newspapers, if at least one of which is a daily, that too, even if the newspaper did not request an enhanced quota.
  2. The total number of pages may not exceed 10 pages. No adjustment may be permitted between circulation and pages; a newspaper couldn't reduce circulation and increase the number of pages or vice-versa.
  3. No newsprint Interchangeability may be permitted between different newspapers published by the same establishment or between different editions of the same paper.
  4. For newspapers with fewer than ten pages, the increase in page count may be no more than 20%.

Writ Petitions were filed in the Supreme Court under Article 32 of the Indian Constitution by leading newspapers: The Times of India, Hindustan Times, and Indian Express. Afterwards, readers, shareholders, and newspaper editors also joined via Writ Petitions. Its legality was questioned in violation of Article 14 and Article 19(1) (a) of the Constitution of India.

The questions that fell for consideration were:
  1. Whether the petitioners being companies could invoke fundamental rights
  2. Whether Art. 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights;
  3. Whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution;
  4. Whether the newsprint Policy fell within Clause 5(1) of the Import, Control Order 1955 and was valid;
  5. Whether clauses 3 and 3A of clause 3 of the 1962 Newsprint Order were violative of Arts. 19,(1) (a) and 14 of the Constitution;
  6. 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 14 of the Constitution .
Petitioner's Arguments
  1. The petitioners claimed that the Newsprint Control Policy of 1972�1973 violated their right to free speech and expression, which they exercised through their editorial staff and the publication medium.
  2. According to the counsel of petitioners the policy of 1972-73 authorized a 20% increase only for daily newspapers of less than 10 pages. It was argued that these were discriminatory quota newspapers with 10 or more pages and thus infringed Article 14. It was argued that there was a disparity in the entitlement of newspapers with an average of more than 10 pages compared to newspapers with 10 pages or less was based on no reasonable classification.
  3. Mr. Nani Palkhivala argued that the newsprint policy was really a policy of 'newspaper control'; and contended it to be a subtle and sophisticated device to control newspapers .The Import Control Act and the Import Control Order are violated by a newspaper control policy. The 1935 Act's Entry 19 on List 1 could provide Parliament the authority to regulate imports.
  4. It was argued that Article 358 is inapplicable because it has no application to the law or executive action taken prior to the proclamation of emergency. The Newsprint Policy was said by the petitioners to be a, continuation of the old newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971.
  5. The petitioners argued that the policy outlined in Remark V will reduce circulation rather than increase it and that the government's newsprint policy did not fall under clause 5(1) of the Import Control Order 1955, and it was therefore invalid.
  6. The petitioners contended that equating the large English daily, which are in a class by themselves, with smaller dailies that require fewer than 10 pages disproves an equitable distribution and demonstrates the treatment of dailies in an unreasonable manner.
  7. According to the petitioners, quotas are not granted on the basis of actual circulation but rather on the basis of notional circulation, which means the actual circulation of 1961-62, with permissible increases year after year, even if the actual circulation does not correspond to the permissible circulation on which the quota was based year after year.
  8. It was asserted that the common ownership units were unable to change the newsprint quota given to each of them because of the second prohibition in Remark VIII of the Newsprint Policy. Using the newsprint quota of one newspaper owned by a common ownership unit for another newspaper owned by that unit is prohibited which was not the case earlier.

Respondent's Arguments
  1. The Additional Solicitor General raised two pleas in demurrer. Firstly, it was claimed that the petitioners were corporations and thus could not invoke fundamental rights. Secondly, it was claimed that Article 358 of the Constitution precludes petitioners from challenging a violation of fundamental rights.
  2. Article 358 of the Constitution was invoked by the Additional Solicitor General to raise the bar to the maintainability of the petition. Nothing in Article 19 shall limit the state's ability to enact laws or carry out executive actions that it would be competent to do absent the provisions of that portion while a proclamation of an emergency is in effect. Therefore, it was asserted on behalf of the government that the petitioners were not permitted to contest the 1972�1973 newsprint policy while the state of emergency was declared.
  3. According to the Additional Solicitor General, the right to import and use newsprint is not a common law right. It was claimed to be a unique right protected by several statutes. The Imports and Exports Act of 1947, the Imports Control Order of 1955, the Essential Commodities Act of 1955, and the Newsprint Control Order of 1962 were cited in support of the proposition that if the petitioners asked for a newsprint quota, they had to follow the prescribed conditions. It was also stated that under Article 19 (1), the press would have no special fundamental right (a).
  4. It was contended that the legislative measures were intended to regulate the newspaper industry. The rulings in the cases of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors. And Express Newspapers case (supra) were cited.
  5. The Additional Solicitor General argued that Article 19 (1) (a) was not violated by the newsprint policy.
    These were the arguments put forth:
    • The right referred to in Article 19 (1) (a) is not directly and immediately addressed by the newsprint policy.
    • The law's subject matter, not its effect or outcome, is what determines whether it has been violated.
    • Although the right to freedom of speech and expression may be consequentially or incidentally restricted, Article 19 (1) (a) is not invoked if the impugned law or action's primary goal is something other than freedom of speech and expression.
  6. The Additional Solicitor General emphasised the pith and substance of the Import Control Act to control imports and exports. According to the decision in Abdul Aziz Amiudin v. State of Maharashtra, the scope of import control extended to every stage at which the Government felt it was necessary to ensure that the goods were properly utilised.
  7. The respondents argued that a law that merely regulates, even directly, press freedom is permissible as long as there is no infringement or denial of citizens' fundamental rights. He relied heavily on American decisions to support his argument that the right of the press to free expression is of all citizens speaking, publishing, and printing in all languages, and that the grave concern for freedom of expression that allowed the inclusion of Article 19 (1) (a) is not to be interpreted as a command that the Government of Parliament is powerless to protect that freedom.
  8. It was argued that there should no' monopolisation of that market, whether it be by the government itself or by a private licensee, because there should be an unrestricted marketplace of ideas where truth will finally win. The press is not at risk from any monopolistic combination harm.
  9. The respondent contended that, it is open to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint. This would establish that there is no shortage of white printing paper.
  10. The Additional Solicitor General argued that the commercial side of the press did not have any particular exemptions and that any incidental restriction on circulation could not harm press freedom of expression.
The Supreme Court upheld the maintainability of the writ petition applying the observations in the Bank Nationalization Case and upheld the right of company under Art.32 when joined in by affected individuals to invoke their fundamental rights. The Supreme Court reasoned 'if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief'.

The Supreme Court rejected Additional Solicitor General's argument that the current petitions, which were originally filed to challenge the Newsprint Policy for 1971-72, were amended to challenge the 1972-73 policy, which had been in effect for a decade until the proclamation of emergency in the year 1971, Art 358 could not bar this petition on the grounds that Article 19 was suspended during the period of emergency.

The case was heard by a 5 Judges Bench. Four Judges (i.e. Chief Justice S.M. Sikri, and Justices A.N. Ray, P. Jaganmohan Reddy, H.M. Beg) gave decision in the favour of petitioners. Justice Ray, speaking for the majority, struck down the newsprint control policy as violative of Article 14 and Article 19(1) (a) of the Constitution. Justice Mathew dissented from the majority and upheld the newsprint policy.

The Judges concluded that If there was a shortage of newsprint, the government have the power to control import of newsprint and government should have implemented it in a fair and equitable basis instead of reducing the number of pages, circulation of newspaper, advertisement, new edition of newspapers, in violation of Articles 14 and 19(1)(a) of the Constitution.

After analysing the records, the Supreme Court rejected the petitioners' argument that the newsprint policy was invalid because it did not comply with section 5(1) of the Import Control Order, 1955. The Court, however, determined that the restrictions imposed by the Newsprint Policy of 1972�1973 were ultra-vires.

The Supreme Court found Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Control Policy, 1972-73 as ultra-virus of Article 14 and Article 19(1)(a) of the Constitution.

The Court held 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))

And the powers given to the Controller are unregulated arbitrary and also it brought discrimination between newspapers and periodicals thus being Violative of Article 14.

The Honourable Supreme Court found that the sub-clauses 3 and 3A of paragraph 3 of the Newsprint Control Order, 1962 violated Article 19(1)(a) and Article 14 of the Constitution of India because they limit a newspaper's size, readership, and growth and are not a reasonable restriction under Article 19(2) resulting in violation of Article 19(1)(a). The Controller's powers are unrestrained and arbitrary, and they also led to discrimination between newspapers and periodicals, which is a violation of Article 14.

The Court concluded that the freedom of the press involved both qualitative and quantitative dimensions, the Newsprint Control Policy was unconstitutional as it's being violative of Article 14 and 19(1)(a) as it's quantitative restrictions were not justified by a shortage of newsprint . The Newsprint Order and Import Control Order were not struck down.

If newsprint was in short supply, then there could be no objection to ration it equitably but to further dictate the number of pages that could be published, and ban any new edition was clearly aimed at controlling the newspapers. As Justice Ray rightly observed, the ostensible object of control of newsprint had been subverted to newspaper control.

  1. Nani Palkhivala: The Courtroom Genius by Arvind P. Datar and Soli Sorabjee

Award Winning Article Is Written By: Mr.Shobhit Rawat
Awarded certificate of Excellence
Authentication No: OT228239731417-9-1022

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