BENNETT COLEMAN v/s UNION OF INDIA

BENNETT COLEMAN v/s UNION OF INDIA

FACTS:

India experienced a newsprint shortage in the 1960s. Newsprint was imported from other nations to satisfy this demand. The Essential Commodities Act of 1955 authorised the creation of the Newsprint Control Order in 1962, and the Import Control Order of 1955 controlled its import.

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%.

Three prestigious newspapers—The Times of India, Hindustan Times, and Indian Express—filed Writ Petitions with the Supreme Court in accordance with Article 32 of the Indian Constitution. Following that, via Writ Petitions, readers, shareholders, and newspaper editors also joined. In contravention of Articles 14 and 19(1)(a) of the Indian Constitution, its legitimacy was questioned.

ISSUES:

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 .

ARGUMENTS:

PETITIONER’S ARGUMENTS:

1. According to the petitioners, their right to free speech and expression—which they exercised through their editorial staff and the publication medium—was violated by the Newsprint Control Policy of 1972–1973 (NCPP).
2. The petitioners’ attorney claims that the policy from 1972–1973 only permitted a 20% increase for daily newspapers with fewer than 10 pages. It was claimed that these newspapers violated Article 14 since they had a discriminatory page quota of 10 or more. A discrepancy in the rights of newspapers with an average of more than 10 pages and those with 10 pages or fewer was said to be based on an illogical categorisation.
3. The newsprint policy, according to Mr. Nani Palkhivala, is actually a measure to “control newspapers,” and he claimed it is a deft and smart tool for doing so. A newspaper control policy is against the Import Control Act and Import Control Order. The ability to limit imports may be granted by Parliament under the 1935 Act’s Entry 19 on List 1.
4. It was contended that Article 358 is not relevant because it does not apply to legislation or executive actions made before the emergency declaration. The petitioners claimed that the newsprint policy was a continuation of the former newsprint policy, which had started earlier and had been in place from year to year for ten years up until the declaration of emergency in 1971.
5. The petitioners claimed that the government’s newsprint strategy did not comply with clause 5(1) of the Import Control Order 1955 and was thus unlawful because it would decrease rather than boost circulation.
6. The petitioners argued that comparing the huge English daily, which are in a class by themselves, with smaller dailies that need fewer than 10 pages refutes the idea of an equitable distribution and shows how unfairly dailies are treated.
7. The petitioners claim that even if the actual circulation does not match the permissible circulation that was used to base the quota year after year, quotas are still granted based on notional circulation, which is defined as the actual circulation of 1961–1962 with permissible increases.
8. It was claimed that the second ban in Remark VIII of the Newsprint Policy prevented the common ownership units from altering the newsprint quota that was assigned to each of them. It is now forbidden to use the newsprint allotment of one newspaper owned by a shared ownership unit for another newspaper controlled by that unit.

RESPOMDENT’S ARGUMENTS:

1. In his demurrer, the Additional Solicitor General made two arguments. First, it was argued that because the petitioners were corporations, they were unable to assert their constitutional rights. Second, it was asserted that petitioners cannot challenge a violation of fundamental rights under Article 358 of the Constitution.
2. The Additional Solicitor General raised the threshold for the petition’s maintainability by citing Article 358 of the Constitution. While a proclamation of an emergency is in place, nothing in Article 19 shall restrict the state’s authority to pass legislation or carry out executive measures that it would be competent to do without the requirements of that section. The government argued that the petitioners were not allowed to challenge the newsprint policy from 1972 to 1973 while the state of emergency was in effect.
3. The Additional Solicitor General asserts that the right to use and import newsprint is not a common law privilege. It was asserted to be a special right covered by a number of laws. The argument that the petitioners had to adhere to the predetermined requirements if they requested a newsprint quota was supported by the citation of 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. It was further noted that the press will not enjoy a unique basic right (a) under Article 19(1).
4. It was argued that the legislative actions were meant to control the newspaper business. Citations were made for the decisions made in the cases of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors. and the Express Newspapers case (above).
5. The Additional Solicitor General argued that Article 19 (1) (a) was not violated by the newsprint policy.

These were the arguments put forth:

1. The right referred to in Article 19 (1) (a) is not directly and immediately addressed by the newsprint policy.
2. The law’s subject matter, not its effect or outcome, is what determines whether it has been violated.
3. 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.
4. 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.
5. 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.
6. 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.
7. The respondent argued that as long as newspapers do not request newsprint, any type of paper may be used without restriction. This would demonstrate that there is plenty of white printing paper available.
8. According to the Additional Solicitor General, there are no specific exemptions for the commercial press, and any incidental restrictions on circulation cannot impair press freedom.

JUDGEMENT:

The Supreme Court upheld the maintainability of the writ petition using the Bank Nationalisation Case remarks, as well as the company’s authority to assert its constitutional rights under Article 32 when joined by impacted persons. “If the State action impairs the right of the shareholders as well as of the Company,” the Supreme Court reasoned, “the Court will not, concentrating solely upon the technical operation of the action, deny itself jurisdiction to grant relief.”

The Additional Solicitor General’s argument that the current petitions, which were initially filed to challenge the Newsprint Policy for 1971–72 but were amended to challenge the 1972–73 policy, which had been in effect for ten years prior to the declaration of emergency in the year 1971, could not be dismissed on the grounds that Article 19 was suspended during the period of emergency was rejected by the Supreme Court.

The case was considered by a bench of five judges. A ruling in favour of the petitioners was made by four judges, including Chief Justice S.M. Sikri and Justices A.N. Ray, P. Jaganmohan Reddy, and H.M. Beg. Speaking for the majority, Justice Ray declared that the newsprint control policy was invalid because it violated Articles 14 and 19(1)(a) of the Constitution. In opposition to the majority, Justice Mathew supported the newsprint policy.

The judges came to the conclusion that, in the event of a newsprint shortage, the government had the authority to regulate newsprint imports and that, instead of doing so in violation of Articles 14 and 19(1)(a) of the Constitution, the government should have done so in a fair and equitable manner.

The petitioners’ claim that the newsprint policy was invalid because it violated section 5(1) of the Import Control Order, 1955 was rejected by the Supreme Court after reviewing the records. The Court, in any case, resolved that the limitations forced by the Newsprint Strategy of 1972-1973 were ultra-vires.

Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Control Policy, 1972–73 were determined by the Supreme Court to be ultra-viruses of Article 14 and Article 19(1)(a) of the Constitution.

The Court held the sub-statements 3 and 3A of provision 3 of the Newsprint Control Request, 1962 as violative of Article 19(1) (a) and Article 14 of the Constitution of India in light of the fact that these conditions limit the size, course and development of a paper and not a sensible limitation inside 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 determined 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 Indian Constitution because they restrict the size, readership, and growth of a newspaper and are not a reasonable restriction under Article 19(2), which results in a violation of Article 19(1)(a). The Controller’s authority is unchecked and arbitrary, and because of this, newspapers and periodicals were treated differently, which is against Article 14 of the Constitution.

CONCLUSION:

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.

RISHITA DASGUPTA (2^ND SEMESTER), ADAMAS UNIVERSITY, KOLKATA