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PETITIONER: BENNETT COLEMAN & CO. & ORS.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT30/10/1972

BENCH: SIKRI, S.M. (CJ) BENCH: SIKRI, S.M. (CJ) RAY, A.N. REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:  1973 AIR  106            1973 SCR  (2) 757  1972 SCC  (2) 788  CITATOR INFO :  RF         1973 SC1461  (1787)  R          1974 SC 366  (98)  F          1974 SC1232  (10)  R          1974 SC1300  (24)  RF         1974 SC1389  (174)  F          1975 SC  32  (32)  RF         1976 SC1207  (86,89,91,177,179,445,541)  R          1978 SC 597  (41,68,77,131,176,195)  R          1978 SC 727  (34)  RF         1979 SC  25  (35)  RF         1980 SC 898  (35)  R          1981 SC1368  (7)  RF         1983 SC 937  (12)  RF         1986 SC 515  (22,33,35,64,65,89,102)  RF         1986 SC 833  (45)  R          1986 SC 872  (70,75,77)

ACT: Constitution of India 1950, Arts. 14 & 19 (1) (a)--Newsprint policy  for 1972-73 whether violates Articles 19(1) (a)  and 14  -Validity  of Remarks V, VII(a), VII(c), VIll and  X  of Policy--Competency  of  shareholders  of  company  to   file petitions under Art.32--Emergency proclaimed under Art.  358 of  Constitution--Application in respect of  enforcement  of fundamental rights whether barred.

HEADNOTE: The  Import  Control  Order  1955  passed  by  the   Central Government  under  ss. 3 and 4A of the Imports  and  Exports Control  Act  1947  laid  restrictions  on  the  import   of newsprint.   As  an essential commodity newsprint  was  also subject  to control under s.3 of the  Essential  Commodities Act 1955.  The Newsprint Control Order 1962 was passed under s.  3  of the Essential Commodities Act.   Sub-clause  3  of clause  3  of  the 1962 Order states  that  no  consumer  of newsprint  shall  in  any licensing period  consume  or  use newsprint in excess of quantity authorised by the Controller from time to time.  Sub-clause 3A of clause 3 states that no consumer  of newsprint other than a publisher of text  books

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of  general interest shall use any kind of paper other  than newsprint  except  with  the permission in  writing  of  the Controller.   Sub-clause (5) of Clause 3 of the  1962  Order states  that in issuing an authorisation under  this  clause the Controller shall have regard to the principles laid down in  the  Import  Control Policy with  respect  to  newsprint announced by the Central Government from time to time.   The newsprint Policy for 1972-73 was challenged in this Court in petitions under Art. 32 of the Constitution.  The  questions that   fell  for  consideration  were  :  (i)  whether   the petitioners being companies could invoke fundamental rights; (ii)  whether Art. 358 of the Constitution was a bar to  any challenge  by the petitioners on violations  of  fundamental rights;  (iii) whether the restriction on  newsprint  import under the 1955 Order was violative of Art. 19(1) (a) of  the Constitution; (iv) whether the newsprint Policy fell  within clause 5(1) of the Import, Control Order 1955 and was valid; (v)  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; (vi) 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 because of the following objectionable features : (a) No new paper or new edition could be started by a common  ownership unit (i.e., a newspaper establishment or concern owning  two or  more  news interest newspapers including  at  least  one daily)  even within the authorised quota of  newsprint;  (b) there was a limitation on the maximum number of pages to 10, no  adjustment being permitted between circulation  and  the pages so as to increase the pages; (c) no interchangeability was  permitted between different papers of common  ownership unit or different editions of the same paper; (d)  allowance of 20 per cent increase in page level up to a, maximum of 10 had been given to newspapers with less than 10 pages; (e)  a big  newspaper was prohibited and prevented from  increasing the number of pages, page areas, and periodicity by reducing circulation   to  meet  its  requirement  even  within   its admissible   quota;   (f)  there   was   discrimination   in entitlement between 758 newspapers with an average of more than 10 pages as compared with newspapers of 10 or less than 10 pages. Allowing the petitions, HELD: Per Majority (Sikri.  C.J., Rayand       Jaganmohan Reddy, JJ.) (1)The   Bank  Nationalization   case   has established   the  view  that  the  fundamental  rights   of shareholders as citizens are not lost when they associate to form a company When their fundamental rights as shareholders are  impaired by State action their rights  as  shareholders are protected.  The reason is that the shareholders’  rights are  equally and necessarily affected if the rights  of  the company  are  affected.   The rights  of  shareholders  with regard to Article 19(1) (a) are projected and manifested  by the  newspapers  owned and controlled  by  the  shareholders through the medium of the Corporation. [773C-D] In  the  present case the individual rights  of  freedom  of speech and expression of editors,Directors and  Shareholders are  all  expressed through their newspapers  through  which they speak.  The locus standi of the shareholder petitioners is  beyond challenge after the ruling of this Court  in  the Bank  Nationalisation case., The presence of the company  is on the same ruling not a bar to the grant of relief.  [773D- F] (ii)The  present- petitions which were originally filed  to challenge  the Newsprint Policy for 1971-72 were amended  to

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challenge  the 1972-73 policy.  The impeached policy  was  a continuation of the old policy.  Article 358 does not  apply to  executive action taken during the emergency if the  same is  a  continuation  of the prior  executive  action  or  an emanation  of the previous law which prior executive  action or  previous law would otherwise be violative of Art. 19  or be otherwise unconstitutional. [774 F, G, H] Executive  action which is unconstitutional is  not  unusual during   the   proclamation  of   emergency.    During   the proclamation  Art.  19  is  suspended.   But  it  would  not authorise the taking of detrimental executive action  during the  emergency affecting the fundamental rights in  Art.  19 without  any legislative authority or in purported  exercise of  power  conferred  by any  pre-emergency  law  which  was invalid when enacted. [775A-B] (iii)The  power of the Government to  import  newsprint cannot  be denied.  The power of the Government  to  control the  distribution  of newsprint cannot  equally  be  denied. This Court cannot adjudicate on such policy measures  unless the  policy  is alleged to. be mala fide.  The  Court  could also  not  go  into  the  dispute  as  to  the  quantity  of indigenous newsprint available for newspapers. [776D; 776E] (iv)The  records with regard to the making and  publication of the news print policy for 1972-73 showed that the  policy was  published under the authority of the Cabinet  decision. The policy was therefore validly brought into existence. (v) Although Art. 19(1) (a) does not mention the freedom  of the Press, it is the settled view of this Court that freedom of  speech and expression includes freedom of the Press  and circulation.   The Press has the right of  free  propagation and  free  circulation  without any  previous  restraint  on publication.   If  a law were to single out  the  press  for laying  down prohibitive burdens on it that  would  restrict the  circulation,  penalise  its freedom  of  choice  as  to personnel, prevent newspapers from being started and  compel the  press to Government aid, this would violate Art.  19(1) (a)  and would fall outside the Protection afforded by  Art. 19(2). [777B-D] 759 The concept of regulation of fundamental rights borrowed and extracted  from American decisions cannot be accepted.   The American  First  Amendment contains no exceptions  like  our Art. 19(2) of the Constitution.  This Court has  established freedom  of  the press to speak and express.   That  freedom cannot be abridged and taken away by the manner the impugned policy has done. [783B; 784C] (vi)A  newspaper control policy is ultra vires  the  Import Control Act and the Import control Order.  The machinery  of Import  Control  cannot  be  utilised  to  control  or  curb circulation  or  growth or freedom of newspapers  in  India. The  pith  and substance doctrine is  used  in  ascertaining whether  the  Act falls under one Entry  while  incidentally encroaching  upon another Entry.  Such a question  does  not arise  here.,  The Newsprint Control Policy is found  to  be newspaper  control order in the guise of framing  an  Import Control Policy for newsprint. [780H; 781A-B] (vii)This  Court in the Bank Nationalisation case  laid down two tests.  First it is not the object of the authority making  the law impairing the right of the citizen  nor  the form  of action that determines the invasion of  the  right. Secondly,  it is the effect of the law and the  action  upon the  right which attracts the jurisdiction of the  court  to grant  relief.   The direct operation of the  Act  upon  the rights forms the real test. [781C-D]

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An  examination  of the provisions of the  newsprint  policy indicates  how the petitioner’s fundamental rights had  been infringed  by  the restrictions on page  limit,  prohibition against  new  newspapers and new editions.  The  effect  and consequence  of the impugned policy upon the  newspapers  is directly   controlling   the  growth  and   circulation   of newspapers.   The  direct  effect is  the  restriction  upon circulation of newspapers., The direct effect is upon growth of  newspapers  through pages.  The direct  effect  is  that newspapers are deprived of their area of advertisement.  The direct  effect is that they are exposed to  financial  loss. The  direct effect is that freedom of speech and  expression is infringed. [782B-C] (viii)It is indisputable that by freedom of the press is meant  the  right  of all citizens  to  speak,  publish  and express their views.  The freedom of the press embodies  the right  of the people to read.  The freedom of the  press  is not  antithetical  to the right of the people to  speak  and express. [782G] (ix)In  the  present case fixation of page limit  will  not only deprive the petitioners of their economic vitality  but also  restrict  the freedom of expression by reason  of  the compulsive  reduction of page level entailing  reduction  of circulation and demanding the area of coverage for news  and views. [790D-E] If  as  a result of reduction in pages the  newspapers  will have to depend on advertisements as the main source of their income, they will be denied dissemination of news and views. That  will also deprive them of their freedom of speech  and expression.  On the other hand if as a result of restriction on  page  limit  the  newspapers  will  have  to   sacrifice advertisements  and  thus  weaken  the  limit  of  financial strength,  the  Organisation  may  crumble.,  The  loss   on advertisements may not only entail the closing down but also affect  the circulation and thereby infringe on  freedom  of speech and expression. [790F-G] (x)The impeached policy violates Art. 14 because it treats newspapers  which  are not equal equally  in  assessing  the needs and requirements of newsprint.  The 7 newspapers which were  operating  above  10  page  level  are  placed  at   a disadvantage  by the fixation of 10 page limit and  entitle- ment  to  quota  on that basis.  There  is  no  intelligible differentia. [791H; 792A-B] 760 The  basic entitlement in Remark V to quota  for  newspapers operating  above  10 page level  violates  Article  19(1)(a) because the quota is hedged in by direction not increase the page number above 10.  The reduction of page limit to 10 for the aforesaid reasons violates Article 19(1)(a) and  Article 14 of the Constitution. [792C] (xi)Under Remark VII(C) those-newspapers within the ceiling of 10 pages get 20 per cent increase in the number of pages. They  require  circulation more than the  number  of  pages. They are denied circulation as a result of the policy.,  The big  English dailies which need to increase their pages  are not  permitted  to do so.  Other dailies which do  not  need increase in pages are permitted quota. for increase but they are denied the right of circulation.  This is not  newsprint control but newspaper control. [792F-G] (xii)Discrimination is apparent from Remark VII in  the newsprint  Policy for 1972-73 by which newspapers with  less than  1,00,000 circulation have been given 10%  increase  in circulation whereas those with more than 1,00,000 circulation

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have been given only 3% increase in circulation. [795C-D] (xiii)    The  first part of Remark VIII prohibits  increase in pages by reducing     circulation.     in    the     past adjustability  between pages and circulation was  permitted. The  individual requirements of different dailies render  it eminently desirable in some cases to increase the number  of pages  than circulation.  The denial of this flexibility  or adjustment is rightly said to hamper the quality, range  and standard  of  the dailies and to affect the freedom  of  the press.  Big dailies are treated to be equal with  newspapers who are not equal to them thus violating Art. 14. [793E-F] (xiv)     The  second prohibition in Remark  VIII  prevented common  ownership  units  from adjusting  between  them  the newsprint quota alloted to each of them.  The prohibition is to  use the newsprint quota of one newspaper belonging to  a common  ownership  unit for another newspaper  belonging  to that unit.  Newsprint is allotted to each paper.  The  news- paper is considered to be the recipient.  A single newspaper will suffer if common ownership units are allowed to  adjust quota within their group. [794 B; & D] (xv) Under Remark X a common ownership unit could bring  out a newspaper or start a new edition of an existing paper even from  their  allocated  quota. it is an  abridgment  of  the freedom  of  expression to prevent a common  ownership  unit from  starting a new edition or a new newspaper.   A  common ownership unit should be free to start a new edition out  of their  allotted  quota and it would be logical to  say  that such  a#  unit can use the allotted quota for  changing  the page structure and circulation of different editions of  the same  paper.  Newspapers however cannot be permitted to  use allotted  quota  for starting a new  newspaper.   Newspapers will  have  to make necessary application for  allotment  of quota  in that behalf.  It will be open to  the  appropriate authorities to deal with the application in accordance  with law. [794G-H] (xvi)     The  liberty  of the press remains an Ark  of  the Covenant.   The  newspapers give the people the  freedom  to find out which ideas are correct.  Therefore the freedom  of the press is to be enriched by removing the restrictions  on page  limit  and  allowing  them to  have  new  editions  of newspapers. [796A-C] (xvii)    The  Press  is  not exposed  to  any  mischief  of monopolistic  combination.   The newsprint policy is  not  a measure to combat monopolies. 761 The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed  or will  appropriately  enable the members of  the  society  to preserve their political expression of comment not only upon public  affairs  but also upon the vast range of  views  and matters needed for free society. [797D-F] (xix)     Clause  3(3A) of the 1962 Order provides  that  no consumer  of newsprint other than a publisher of text  books of  general interest shall use any kind of page  other  than newsprint except with the permission of the Controller.   It was therefore wrong to say that it was open to newspapers to make unrestricted use of any form of paper so long as  news- papers did not apply for newsprint. [798F] (xx) In  the  result the provisions in  remarks  V,  VII(a), VII(C) and VIII of the Policy being violative of Arts. 14  & 19  (1)  (a)  of the Constitution must  be  struck  down  as unconstitutional.   The  prohibition  in  Remark  X  against common   ownership  unit  from  starting  a  new   newspaper periodical    or   a   new   edition   must   be    declared unconstitutional and struck down as violative of Art. 19 (1)

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(a) of the Constitution. [799B-D] [In the circumstances of the case the Court did not find  it necessary to express any opinion on Clause 3(3) and’  Clause 3(3A) of the Control Order] State  Trading Corporation of India Ltd. v.  The  Commercial Tax  Officer,  Visakhapatanam,  [1964]  4  S.C.R.  99,  Tata Engineering  &  Locomotive Co. v. State of Bihar,  [1964]  6 S.C.R., 885, Chiranjit Lal Choudhuri v. The Union of India & Ors. [1950] S.C.R. 869, Express Newspapers (Private) Ltd.  & Anr.  v. The Union of India & Ors. [1959] S.C.R.  12,  Sakai Papers  (P)  Ltd.  & Ors. v. The Union of  India,  [1962]  3 S.C.R. 842, Romesh Thappar v. State of Madras, [1950] S.C.R. 594,  Brij Bhushan V. State of Delhi, [1950] S.C.R. 605,  R. C.  Cooper v. Union of India, [1970] 3 S.C.R. 530,  District Collector  of  Hyderabad & Ors. v. M/s Ibrahim  &  Co.  etc. [1970]  3  S.C.R.  498, State of Madhya Pradesh  &  Anr.  v. Thakur Bharat Singh, [1967] 2 S.C.R. 454, Hamdard  Dawakhana (Wakf)  Lal  Kuan  Delhi & Anr. v. Union of  India  &  Ors., [1960]  2 S.C.R. 1671, Red Lion Broadcasting Co. v.  Federal Communications  Com. [1969] 393 US 367=23 L.Ed  371,  United States v. O’Brian, [1968] 391 US 367=23L.Ed. 2d 371,  United States  v. O’Brien, [1968] 391, U.S. 367=20 L.Ed.  2d.  672, Abdul Azict Aminudinv. State of Maharashtra, [1964] 1 S.C.R. 830, Dwarkadas Shrinivas v.The Sholapur & Weaving Co.  Ltd., [1954] S.C.R. 674,Commonwealth     of  Australia v. Bank  of New  South Wales, [1950] A.C.235 and Citizen Publishing  Co. v.  United States, [1969] 394 U.S. 131=22 L. Ed. 2  d.  148, referred to. Per  Beg  J. (concurring) The ambit of the conditions  in  a licence  cannot  under  the provisions of  the  Imports  and Exports Control Act, after newsprint has been imported under a licence, extend to laying down how it is to be utilized by a newspaper concern for its own genuine needs and businesses because  this would ?.mount to control of supply of news  by means  of newsprint instead of only regulating  its  import. [833C-D] The  relevant enactments and orders seem to  authorise  only the grant of licences for particular quotas to those who run newspapers  on the strength of their needs, assessed on  the basis of their past performances and future requirements and other  relevant  data, but not to warrant an  imposition  of further  conditions  to be observed by them while  they  are genuinely  using the newsprint themselves in the  course  of carrying  on  a legitimate and  permissible  occupation  and business.   The impugned restrictive conditions thus  appear to  go  beyond, the scope of the Essential  Commodities  Act 1955  as well as the imports & Exports (Control) Act,  1947. Nor could any legal 762 authority  be found for them in the provisions of the  Press Books  Act 1867, Registration of Newspapers (Central  Rules) 1956,  and Press Council Act, 1965, to which  reference  was made. [833D-G] Therefore  the  argument  put  forward  on  behalf  of   the petitioners that after the allocation of quotas of newsprint to  each set of petitioners, on legally  relevant  material, the  further restrictions sought to be imposed, by means  of the notified newsprint control policy, on the actual mode of user of newsprint for publication of information or views by the  licensees,  similar to those which were  held  by  this Court in Sakai Papers case to be invalid, are not covered by any law in existence, had to be accepted.  Hence it was  not even  necessary  to consider whether  they  were  reasonable restrictions warranted by either Art. 19 (2) or Art. 19  (6) of the Constitution.  They must first have the authority  of

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some law to support them before the question of  considering whether they could be reasonable restrictions on fundamental rights of the petitioner could arise. [833H-834B] Per Mathew J. (dissenting) (1) Art. 19 (1) (a) guarantees to the citizens, the fundamental right of the freedom of speech and  Art,  19(2) enumerates the type of  restrictions  which might be imposed by law.  It does not follow from this  that freedom  of expression is not subject to  regulations  which may not amount to, abridgment.  It is a total  misconception to  say  that  speech  cannot be  regulated  or  that  every regulation of speech would be anabridgment of the freedom of speech.   No  freedom  however absolute, can  be  free  from regulation.   Though the right under Art. 30(1) is in  terms absolute, this Court said in In Re the Kerala Education Bill 1957,  ([1959]  S.C.R. 995), that the right  is  subject  to reasonable regulation. [803F-G] (ii) If,  on  account of scarcity of newsprint,  it  is  not possible,  on  an equitable, distribution to  allot  to  the petitioners,  newsprint to the extent necessary to  maintain the  present  circulation of the newspapers  or  their  page level  has to be reduced, it cannot be contended that  there has  been  abridgment  of freedom  of  speech.   Surely  the reduction  in  the page level or circulation is  the  direct result of the diminished supply of newsprint.  Yet it cannot be said that there is an abridgment of the freedom of speech of the petitioners.  There might be an abridgment of speech, but not an abridgment of the freedom of speech. [807C-D] (iii)     The pith and substance test, although not strictly appropriate, might serve a useful purpose in the process  of deciding whether the provisions in question which work  some interference  with  the freedom of  speech  are  essentially regulatory in character. [807C-D] (iv) The  crucial  question today, as regards  Art.  14,  is whether the command implicit in it constitutes merely a  bar on  the  creation  of  inequalities  existing  without   any contribution thereto by State action.  It has been said that justice  is the effort of man to mitigate the inequality  of man.   The  whole drive of the directive principles  of  the Constitution  is  toward this goal and it is  in  consonance with  the new concept of equality.  The only norm which  the Constitution  furnishes  for distribution  of  the  material resources of the community is the elastic norm of the common good [see Art. 39(b)].  It cannot be said that the principle adopted  for  the distribution of newsprint is not  for  the common good. [816C-F] That apart one of the objects of the Newsprint policy was to remedy  the inequality created by the previous policies  and to  enable  the dailies having less than 10 pages  attain  a position of equality with those operating on a page level of 10 or more.. The allowance of 20 per cent 763 increase for growth in the page level provided in Remark VII is  based  on a classification and  that  classification  is grounded  on an intelligible differentia having a  nexus  to the object sought to be achieved. [816G] (v)  If  the  entitlement  of a  consumer  of  newsprint  is calculated on the basis of page-level and circulation of the newspaper  it  would be an integral part of  any  system  of rationing  to tell the consumer that he should maintain  the page  level and circulation of the paper.  The provision  in Remark VIII does not say that the proprietor or publisher of a newspaper should reduce its circulation.  The provision in effect only tells the proprietor/ publisher of the newspaper "maintain  the circulation at the present level or  increase it  if you like by reducing the page level." This would  not

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amount  to an abridgment of the freedom of speech. [817 D  & F] (vi) Under  the  theory  of  the  freedom  of  speech  which recognises  not only the right of the citizens to speak  but also  the right of the community to hear, a policy  for  the distribution of newsprint for maintenance of circulation  at its  highest possible level as it furthers the right of  the community  to  hear,  will  only  advance  and  enrich  that freedom. [819D] (vii)     It is difficult to understand how the fixation  of a  maximum  page  level of 10 for calculation  of  quota  of newsprint  would offend the fundamental right of freedom  of speech  of the petitioners.  The freedom of speech does  not mean  a  right  to obtain or use an  unlimited  quantity  of newsprint., Art. 19(1) (a) is not the "guardian of unlimited talkativeness." [814F-G] (viii)    It  is  settled by the decision of this  Court  in Hamdard  Dawakhana  ([1960] 2 S.C.R.  671)  that  commercial advertisement does not come within the ambit of the  freedom of  speech  guaranteed  by Art.  19(1)(a).   Curtailment  of speech  occasioned  by  rationing of newsprint  due  to  its scarcity  can only affect freedom of speech  indirectly  and consequently there would be no abridgment of it. [815B-C] (ix) The  Government  may  under  cls.  3  of  the   Imports (control)  Order,  1955  totally  prohibit  the  import   of newsprint  and  thus disable any person from carrying  on  a business  in newsprint, if it is in the general interest  of the public not to extend any foreign exchange on that score. If the affirmative obligation to expend foreign exchange and permit  the  import  of newsprint stems  from  need  of  the community  for  information  and  the  fundamental  duty  of Government  to  educate the people as also  to  satisfy  the individual  need  for  self expression, it is  not  for  the proprietor  of a newspaper alone to say that he will  reduce the  circulation  of  the newspaper and  increase  its  page level,  as the community has an interest in  maintaining  or increasing circulation of newspapers.. The claim to  enlarge the  volume of speech at the expense of circulation  is  not for  exercising  the freedom of speech  guaranteed  by  Art. 19(1) (a) but for commercial advertisement for revenue which will fall within the ambit of that subarticle. [820B-E] (x)  The  printer or publisher of each newspaper owned by  a common  ownership unit is a separate consumer and it  is  to that  consumer that the quota is allotted.  The  application for  quota made by the common ownership unit  specifies  the entitlement  of  each newspaper owned by it,  and  quota  is granted to each newspaper on that basis.  If it were  opened to a common ownership unit to use the quota allotted for one newspaper  owned  by  it for another  newspaper,  or  for  a different   edition  of  the-same  newspaper,   that   would frustrate  the  whole scheme of rationing.   Prohibition  of interchangeability  has nothing to do with Art.  19(1)  (a). [822C-D] 764 (xi) That  there is a valid classification between a  person owning  no newspaper and a common ownership unit owning  two or more newspapers cannot be denied.  Any person desiring to express  himself  by  the medium of a  newspaper  cannot  be denied  an opportunity for the same.  The  right  guaranteed under Art. 19(1)(a) has an essentially individual aspect.  A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. if a  common  ownership  unit  were  to  go  on  acquiring   or sponsoring new newspapers and if the claim for quota for all the   newspapers   is  admitted,  that   would   result   in

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concentration of newspaper ownership and will accelerate the tendency towards monopoly in the newspaper industry.   Since the  quantity  of newsprint available  for  distribution  is limited, any system of rationing must place some  limitation upon  the  right  of a person  to  express  himself  through newspapers. [822H; 823A-D] (xii)     The  contention that the newsprint Policy was  not binding  since  it  had no statutory backing  could  not  be accepted.   The  newsprint Policy was issued  by  the  Chief Controller of Imports & Exports and the Additional Secretary to  Government, had authenticated it.  The newsprint  Policy was placed before both the Houses of Parliament.  Even if it was  administrative in character it was capable of  founding rights and duties. [823F; 824B] (xiii)    The  contention  that  after  newsprint  has  been imported,  there  was  no  longer  any  power  left  in  the Government or in the Chief Controller of Imports and Exports to  direct the manner in which it should be utilized,  could not  be accepted.  Even if it be assumed that Government  or the  Chief  Controller of Imports and Exports has  no  power under  cl. 5(1)(i) of the Imports (Control) Order  1955,  to issue  directions  as  regards the mode  of  utilization  of newsprint after its import, it is clear that the  Government has  power  by  virtue  of the provisions of  s.  3  of  the Essential Commodities Act, 1955, to pass an Order as regards the utilization of newsprint, as newsprint is an  "essential commodity" under s. 2(vii) of that Act. [824F; 825C-D] (xiv)     Clauses  3(3)  and 3(3A) of that  newsprint  order were not violative of Art. 14 of the Constitution. [826F] (xv) It was not necessary to express any opinion as  regards the maintainability of the writ petitions on the ground that consumers of newsprint in question were not citizens. [826G]

JUDGMENT: ORIGINAL JURISDICTION Writ Petitions Nos. 334 of  1971, 175, 186 and 264 of 1972. Petitions under Article 32 of the Constitution of India  for the enforcement of fundamental rights. N.   A. Palkhiwala, S. J. Sorabjee, M. O. Chenai, S. Swarup, Ravinder Narain, O. C. Mathur and J. B. Dadachanji, for  the petitioners (in W.P. No. 334 of 1971.) C.   K.  Daphtary,  M.  C.  Bhandare,  Liela  Seth,  O.   P. Khaitanand N.  C. Shah, for the Petitioner (in W.P. No.  175 of 1972). S.   J.  Sorabjee,  Ramanathan, J. B.  Dadachanji,  Ravinder Narain    and O. C. Mathur, for the Petitioners (in W.P. No. 186 of 1972). 765 M.   K. Nambyar, K. K. Venugopal, J. B. Dadachanji, Ravinder Narain  and O. C. Mathur, for the petitioners (in  W.P.  No. 264 of 1972). F.   S.  Nariman, Additional Solicitor-General of India,  G. Das  and  B. D. Sharma, for the respondents (in  W.Ps.  Nos. 334, 175 and 186 of 1972). J.   B.  Dadachanji, O. C. Mathur and Ravinder  Narain,  for the Interveners Nos.  1 and 2. O. P. Khaitan, for Intervener No. 3. The majority judgment of Sikri, C.J. and Ray and  Jaganmohan Reddy,  JJ.  was delivered by Ray, J. Beg,  J.  delivered  a separate   concurring  opinion.   Mathew,  J.  delivered   a separate dissenting opinion. RAY,  J.  These petitions challenge the  Import  Policy  for Newsprint for the year April 1972 to March 1973.  The  News-

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print Policy is impeached as an infringement of  fundamental rights to freedom of speech and expression in Article 19 (1) (a) and right to equality in Article 14 of the Constitution. Some  provisions  of the Newsprint Control  Order  1962  are challenged  as violative of Article 19(1)(a) and Article  14 of the Constitution. The  import  of newsprint is dealt with  by  Import  Control Order,  1955  (referred to as the 1955 Import  Order).   The 1955 Import Order is made in exercise of powers conferred by sections  3 and 4A of the Imports and Exports  Control  Act, 1947  (referred to as the 1947 Act).  Section 3 of the  1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports.   Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports.  Item 44 in Part V  of  Schedule  I  of the  1955  Import  Order  relates  to newsprint.   Newsprint is described as white printing  paper (including water lined newsprint which contained  mechanical wood  pulp  amounting  to not less than  70%  of  the  fibre content).   The import of newsprint is restricted under  the 1955 Import Order.  This restriction of newsprint import  is also  challenged because it infringes Article 19(1)(a).   It is  said that the restriction of import is not a  reasonable restriction within the ambit of Article 19(2). The  Newsprint Control Order 1962 (referred to as  the  1962 Newsprint Order) is made in exercise of powers conferred  by section of the Essential Commodities Act. 1955 (referred  to as the 1955 Act).  Section 3 of the 1955 Act enacts that  if the Central Government is of opinion that it is necessary or expedient  so to do for maintaining or increasing supply  of essential  commodities  or  for  securing  their   equitable distribution and availability 766 at fair prices, it may, by order, provide for regulating  or prohibiting  production, supply and distribution  and  trade and  commerce  therein.  Section 2 of the 1955  Act  defines "essential  commodity"   Paper  including  newsprint,  paper board  and straw board is defined in section 2 (a) (vii)  of the 1955 Act to be an essential commodity. The  1962 Newsprint Order in clause 3 mentions  restrictions on  acquisition,  sale and consumption of  newsprint.   Sub- clause 3 of clause 3 of the 1962 Newsprint Order states that no  consumer  of newsprint shall, in any  licensing  period, consume   or  use  newsprint  in  excess  of  the   quantity authorised by the Controller from time to time.   Sub-clause 3A  of clause 3 of the 1962 Newsprint Order states  that  no consumer of newsprint, other than a publisher of text  books or  books of general interest, shall use any kind  of  paper other than newsprint except with the permission, in writing, of  the  Controller.  Sub-clause 5 of clause 3 of  the  1962 Newsprint  Order  states that in  issuing  an  authorisation under  this clause, the Controller shall have regard to  the principles  laid  down  in the Import  Control  Policy  with respect  of  newsprint announced by the  Central  Government from, time to time.  Sub-clauses 3 and 3A of clause 3 of the 1962  Newsprint Order are challenged in these  petitions  on the   ground  that  these  clauses  affect  the  volume   of circulation, the size and growth of a newspaper and  thereby directly  infringe Article 19 (1 ) (a) of the  Constitution. The restrictions mentioned in these sub-clauses of clause  3 of  the  1962  Newsprint  Order are  also  said  to  be  not reasonable  restrictions within the ambit of Article 19  (2) of the Constitution. Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order are further impeached on the ground that they offend Article

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14  of  the Constitution.  Sub-clause 3A is said  to  confer unfettered and unregulated power and uncontrolled discretion to   the   Controller   in  the  matter   of   granting   of authorisation.  It is said that there are no provisions  for redress  of grievances by way of appeal or revision  of  the Controller’s  decision in the matter of grant or renewal  of authorisation.  The restrictions are said to be not  reason- able  or justified in the interest of general  public.   The distinction  between publishers of text-books and  books  of general  interest  on the one hand and  other  consumers  of newsprint  on  the  other in sub-clause 3A  is  said  to  be discriminatory  and without any rational basis.  Again,  the disability imposed by sub-clause 3A on newspapers preventing them from using printing and writing paper while  permitting all  other  consumers  to do so, is said  to  be  irrational discrimination  between  newspapers and periodicals  as  the latter  are permitted to use unlimited quantity of  printing and  writing  paper  in  addition  to  their  allocation  of newsprint. 767 The Newsprint Policy of 1972-73 referred to as the Newsprint Policy  deals  with white printing  paper  (including  water lined   newsprint  which  contained  mechanical  wood   pulp amounting  to  not  less  than 70  per  cent  of  the  fibre content).  Licences are issued for newsprint.  The  validity of licences is for 12 months.  The Newsprint Policy  defines "common  ownership unit" to mean newspaper establishment  or concern   owning  two  or  more  news  interest   newspapers including  at least one daily irrespective of the centre  of publication and language of such newspapers.  Four  features of  the  Newsprint  Policy are called  in  question.   These restrictions  imposed  by the Newsprint Policy are  said  to infringe   rights  of  freedom  of  speech  and   expression guaranteed in Article 19 (1)(a) of the Constitution.  First, no  new  paper  or new edition can be started  by  a  common ownership   unit  even  within  the  authorised   quota   of newsprint.   Secondly, there is a limitation on the  maximum number  of pages to 10.  No adjustment is permitted  between circulation  and  the  pages so as to  increase  the  pages. Thirdly,   no  inter-changeability  is   permitted   between different  papers  of  common ownership  unit  or  different editions  of the same paper.  Fourthly, allowance of 20  per cent  increase in page level up to a maximum of 10 has  been given  to newspapers, with less than 10 pages.  It  is  said that  the  objectionable  and  irrational  feature  of   the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and   periodicity  by  reducing  circulation  to  meet   its requirement  even  within  its  admissible  quota.   In  the Newsprint  Policy  for  the year  1971-72  and  the  earlier periods  the  newspapers and periodicals were  permitted  to increase  the number of pages, page area and periodicity  by reducing  circulation.   The current  policy  prohibits  the same.    The  restrictions  are,  therefore,  said   to   be irrational,   arbitrary   and   unreasonable.    Big   daily newspapers  having  large  circulation  contend  that   this discrimination  is bound to have adverse effects on the  big daily newspapers. The  Newsprint  Policy  is said  to  be  discriminatory  and violative of Article 14 because common ownership units alone are prohibited from starting a new paper or a new edition of the  same paper while other newspapers with only  one  daily are  permitted  to do so.  The  prohibition  against  inter- changeability between different papers of the same unit  and different editions of the said paper is said to be arbitrary

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and irrational, because it treats all common ownership units as  equal  and ignores pertinent  and  material  differences between  some common ownership units as compared to  others. The  10 page limit imposed by the policy is said to  violate Article  14 because it equates newspapers which are  unequal and provides the same permissible page limit for  newspapers which  are  essentially local in their character  and  news- papers which reach larger sections of people by giving world news  14-L499Sup.CI/73 768 and  covering  larger  fields.  The  20  per  cent  increase allowed for newspapers, whose number of pages was less  than 10  is  also  challenged  as  violative  of  Article  14  by discriminating against newspapers having more than 10 pages. The  difference  in entitlement between newspapers  with  an average of more than 10 pages as compared with newspapers of 10  or  less  than 10 pages is  said  to  be  discriminatory because  the differentia is not based on rational  incidence of classification. The import policy for newsprint has a history.  From 1963-64 quota  of newsprint for dailies has been calculated  on  the basis of page level of 1957 and circulation of 1961-62  with ad  hoc increases for growth on the basis of  percentage  of pages  calculated  on  circulation  and  allowance  of  page increase  of  not more than 2 pages at a time subject  to  a maximum of 12 pages.  The bulk of newsprint was imported  in the past.  Indigenous newsprint was limited in supply.  From 1963-64 till 1970-71 printing and writing paper available in our  country was taken into account for framing  the  import policy.   The  quantity  which could be  made  available  to consumers of newsprint for the requirements of publishers of text  books were considered in that behalf.   After  1971-72 printing  and writing paper was in short supply.   According to   the  Government  this  was  adversely   affecting   the requirements  of the publishers of text books.  The loss  to newsprint  consumer  from  the  non-availability  of   white printing  paper  was  made good in  additional  quantity  of imported  newsprint.   The  import quota  of  newsprint  was increased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes in 1971-72. From 1972-73 with regard to daily newspapers three principal changes were effected.  First, the base year for circulation was  taken at 1970-71.  Second, the page level was taken  at the maximum of 10 pages instead of the previously  operating 10  page level.  Those operating at a page level of over  10 pages were given the facility of basing their required quota either  on actual circulation for 1970-71 or  admissible  or calculated  circulation  for  1971-72  whichever  is   more. Third,  the increase in quota for growth was allowed  as  in the  past,  In  the  case  of  circulation  growth  it   was stipulated  in terms of percentage of circulation  over  the previous year.  In the case of page growth the maximum of 10 pages was permitted. The  Additional  Solicitor  General  raised  two  pleas   in demurrer.   First,  it was said that  the  petitioners  were companies  and therefore. they could not invoke  fundamental rights.   Secondly,  it was, said that Article  358  of  the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights. 769 This Court in State Trading Corporation of India Ltd. v. The Commercial   Tax   Officer,   Visakhapatnam(1)   and    Tata Engineering  &  Locomotive  Co.  v.  State  of  Bihar  (2  ) expressed  the  view that a corporation was  not  a  citizen

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within the meaning of Article 19, and, therefore, could  not invoke that Article.  The majority held that nationality and citizenship  were distinct and separate concepts.  The  view of this Court was that the word "citizen" in Part 11 and  in Article  19 of the Constitution meant the same  thing.   The result  was  that  an incorporated company could  not  be  a citizen  so as to invoke fundamental rights.  In  the  State Trading  Corporation(1)  case  (supra)  the  Court  was  not invited   to  "tear  the  corporate  veil".   In  the   Tata Engineering  &  Locomotive Co. (2) case (supra)  this  Court said that a company wag a distinct and separate entity  from shareholders.   The  corporate  veil it was  said  could  be lifted  in cases where the company is charged  with  trading with  the  enemy  or  perpetrating  fraud  on  the   Revenue authorities.   Mukherjea J., in Chiranjit Lal  Choudhuri  v. The  Union of India & Ors. (3 ) expressed the minority  view that  an incorporated company can come up to this Court  for enforcement of fundamental rights. There  are however decisions of this Court where relief  has been granted to the petitioners claiming fundamental  rights as  shareholders or editors of newspaper  companies.   These are Express Newpapers (Private) Ltd. & Anr. v. The Union  of India  &  Ors.(4)’and Sakal Papers (P) Ltd. &  Ors.  v.  The Union of India (5). In  Express  Newspapers (4 ) case (supra) the  Express  News papers  (Private Ltd. was the petitioner in a writ  petition under  Article  32.  The Press Trust of  India  Limited  was another  petitioner in a similar writ petition.  The  Indian National Press (Bombay) Private Ltd. otherwise known as  the "Free  Press  Group"  was a petitioner  in  the  third  writ petition.   The Saurashtra Trust was petitioner for a  chain of newspapers in another writ petition.  The Hindustan Times Limited  was  another petitioner.  These  petitions  in  the Express  Newspapers(4) case (supra) challenged the vires  of the   Working  Journalists  (Conditions  of   Service)   and Miscellaneous   Provisions  Act,  1955.    The   petitioners contended  that the provisions of the Act violated  Articles 19(1) (a), 19(1)(g) and 14 of the Constitution. In Sakal Papers(5) case (supra) the petitioners were a  Pri- vate  limited  company carrying on  business  of  publishing daily and weekly newspapers in Marathi and two  shareholders in the (1) [1964] 4 S.C.R. 99.       (2) [1964] 6 S.C.R. 885. (3) [1950]S.C.R. 869.        (4) [1959] S.C.R. 12.  (5) [1962] 3 S.C.R. 842. 770 company.   There  were  two other petitions  by  readers  of "Sakar"  newspaper.  ’Me reader petitioners also  challenged the  constitutionality  of the Act.  The  petitioners  there challenged the Daily Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution. Neither in the Express Newspapers case (supra) nor in  Sakal Papers  case  (supra) there appears to be  any  plea  raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company. In the Express Newspapers case (supra) this Court held  that freedom  of speech and expression includes within its  scope the  freedom  of  the Press.  This  Court  referred  to  the earlier  decisions in Romesh Thappar v. State  of  Madras(1) and  Brij  Bhushan v. State of Delhi(2).   Romesh  Thappar’s case  (supra) related to a ban on the entry and  circulation of  Thapper’s  journal  in the State  of  Madras  under  the provisions  of the Madras Maintenance of Public  Order  Act, 1949.   Patanjali Sastri, J. speaking for the Court said  in Romesh  Thappar’s case (supra) that "there can be  no  doubt

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that  the freedom of speech and expression includes  freedom of  propagation of ideas and that freedom is ensured by  the freedom  of  circulation.   Liberty  of  circulation  is  as essential  to  that freedom as the liberty  of  publication. Indeed,  without circulation publication would be of  little value".  In Brij Bhushan’s case (supra) Patanjali Sastri, J. speaking  for  the majority judgment again said  that  every free  man  has  undoubted right to lay  what  sentiments  he pleases before the public; to forbid this, is to destroy the freedom  of  the  press".   Bhagwati,  J.  in  the   Express Newspapers case (supra) speaking for the Court said that the freedom  of  speech  and  expression  includes  freedom   of propagation of ideas which freedom is ensured by the freedom of  circulation  and  that the liberty of the  press  is  an essential  part  of  the  right to  freedom  of  speech  and expression  and  that the liberty of the press  consists  in allowing no previous restraint upon publication. Describing  the impugned Act in the Express Newspapers  case (supra) as a measure which could be legitimately  character- ised  to  affect  the  press this Court  said  that  if  the intention  or the Proximate effect and operation of the  Act was  such as to bring it within the mischief of  Article  19 (1) (a) it would certainly be liable to be struck down.  But the Court found in the Express Newspapers case (supra)  that the  impugned, measures were enacted for the benefit of  the working  journalists  and  it was,  therefore,  neither  the intention nor the effect and operation (1) [1950] S.C.R. 594               (2) [1950] S.C.R. 605 771 of  the  impugned Act to take away or abridge the  right  of freedom of speach and expression enjoyed by the petitioners. There  are ample observations of this Court in  the  Express Newspapers  case  (supra)  to  support  the  right  of   the petitioner  companies there to invoke fundamental  right  in aid  of  freedom of speech and expression enshrined  in  the freedom of the press.  This Court said that if the  impugned measure  in that case fell within the vice of Article  19(1) (a)  it  would  be  struck down.   This  observation  is  an illustration of the manner in which the truth and spirit  of the freedom of press is preserved and protected. In Sakal Papers case (supra) this Court struck down  section 3(1) of the Newspaper (Price and Page) Act, 1956 and allowed the petitioner company relief-on that basis.  In the,  Sakal Papers case (supra) relief was  granted to the  shareholders and  the  company.   The Court  thought  it  unnecessary  to express any opinion on the right of the readers to  complain of infraction of fundamental rights in Article 19(1) (a)  by reason of impact of law abridging or taking way the  freedom of speech and expression. In  the  present case, the petitioners in each case  are  in addition  to the company the shareholders, the, editors  and the  publishers.  In the Bennett Coleman group of cases  one shareholder,  a reader of the publication and three  editors of the three dailies published by the Bennett Coleman  Group are  the  petitioners.   In  the  Hindustan  Times  case   a shareholder  who  happened  to  be  a  Deputy  Director,   a shareholder, a Deputy Editor of one of the publications, the printer  and the publisher of the publications and a  reader are  the  petitioners.  In the Express Newspapers  case  the company  and  the  Chief  Editor  of  the  dailies  are  the petitioners.  In the Hindu case a shareholder, the  Managing Editor,  the publisher of the company are  the  petitioners. One of the important questions in these petitions is whether the  shareholder,  the  editor,  the  printer,  the   Deputy Director who are all citizens and have the right to  freedom

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under  Article 19(1) can invoke those rights for freedom  of speech  and expression, claimed by them for freedom  of  the press  in their daily publication.  The petitioners  contend that as a result of the Newsprint Control Policy of  1972-73 their  freedom  of speech and expression  exercised  through their editorial staff and through the medium of publications is  infringed.  The petitioners also challenge the  fixation of  10 page ceiling and the restriction on  circulation  and growth on their publications to be not only violative of but also  to  abridge and take away the freedom  of  speech  and expression  of  the  shareholders  and  the  editors.    The shareholders,  individually  and in  association  with  one, another represent the medium 772 of  newspapers through which they disseminate and  circulate their views and news.  The newsprint policy express them  to heavy financial loss and impairs their right to carry on the business  of printing and publishing of the dailies  through the medium of the companies. In  R. C. Cooper v. Union of India (1) which is referred  to as  the Bank Nationalisation(1) case Shah, J.  speaking  for the  majority  dealt with the contention  raised  about  the maintainability of the petition.  The petitioner there was a shareholder,  a  Director and holder of deposit  of  current accounts   in the Bank.  The locus standi of the  petitioner was  challenged on the ground that no fundamental  right  of the petitioner there was directly impaired by the  enactment of the Ordinance and the Act or any action taken thereunder. The  petitioner  in the Bank  Nationalisation  case  (supra) claimed that the rights guaranteed to him under Articles 14, 19   and  31  of  the  Constitution  were   impaired.    The petitioner’s  grievances  were  these.   The  Act  and   the Ordinance were without legislative competence.  The Act  and the  Ordinance interfered with the guarantee of  freedom  of trade.   They  were  not  made  in  public  interest.    The President  had  no power to promulgate  the  Ordinance.   In consequence of hostile discrimination practiced by the State the  value of the petitioner’s investment in the  shares  is reduced.   His  right  to  receive  dividends  ceased.    He suffered financial loss.  He was deprived of the right as  a shareholder  to carry on business through the agency of  the company. The  ruling  of  this Court  in  Bank  Nationalisation  case (supra) was this :               "A measure executive or legislative may impair               the  rights of the company alone, and  not  of               its shareholders; it may impair the rights  of               the  shareholders not of the Company;  it  may               impair the rights of the shareholders as  well               as of the company.  Jurisdiction of the  Court               to  grant  relief cannot be  denied,  when  by               State  action  the rights  of  the  individual               shareholder  are  impaired, if-  that  action,               impairs  the  rights of the Company  as  well.               The   test   in   determining   whether    the               shareholder’s right is impaired is not formal;               it  is essentially qualitative; 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."               (1)   [1970] 3 S.C.R. 530. 773 In the Bank Nationalisation case (supra) this Court held the

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statute to be void for infringing the rights under  Articles 19(1)(f)  and  19(1)(g) of the Constitution.   In  the  Bank Nationalisation   case   (supra)  the   petitioner   was   a shareholder and a director of the company which was acquired under the statute.  As a result of the Bank  Nationalisation case (supra)   it  follows that the Court finds out  whether the  legislative  measure directly touches  the  company  of which  the  petitioner is a shareholder.  A  shareholder  is entitled to protection of Article 19.  That individual right is  not lost by reason of the fact that he is a  shareholder of  the company.  The Bank Nationalisation case (supra)  has established   the  view  that  the  fundamental  rights   of shareholders as citizens are not lost when they associate to from   a   company.   When  their  fundamental   rights   as shareholders  are impaired by State action their  rights  as shareholders   are  protected.   The  reason  is  that   the shareholders’ rights are equally and necessarily affected if the.  rights  of the company are affected.   The  rights  of shareholders with regard to Article 19(1) (a) are projected and manifested by the newspapers owned and controlled by the shareholders through-the medium of the corporation.  In  the present case, the individual rights of freedom of speech and expression  of editors, Directors and shareholders  are  all exercised through their newspapers through which they speak. The  press reaches the public through the  Newspapers.   The shareholders   speak  through their editors- The  fact  that the  companies  are the petitioners does  not  prevent  this Court  from  giving  relief to  the  shareholders,  editors, printers who have asked for protection of their  fundamental rights by reason of the effect of the law and of the  action upon  their  rights.  The locus standi  of  the  shareholder petitioners  is  beyond challenge after the ruling  of  this Court  in  the  Bank  Nationalisation  case  (supra).    The presence of the     company is on the same ruling not a  bar to the grant of relief. The  rulings in Sakal Papers case (supra) and Express  News- papers  case  (supra)  also support the  competence  of  the petitioners to maintain the proceedings. Article   358  of  the  Constitution  was  invoked  by   the Additional    Solicitor  General  to raise the  bar  to  the maintainability of the petition.  Under Article 358 while  a proclamation  of  a  emergency is in  operation  nothing  in Article 19 shall restrict the power of the State to make any law  or to take any executive action which the  State  would but  for the provisions contained in that Part be  competent to  make or to take.  It was, therefore, said on  behalf  of the Government that the petitioners could not challenge  the 1972-73   Newsprint  Policy  during  the   proclamation   of emergency.   Counsel on behalf of the petitioners  contended that   Article  358  is  inapplicable  because  it  has   no application to the law or executive 774 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.   The restrictions  on  newsprint policy were imposed  before  the proclamation  of  emergency.  It was, therefore,  said  that these restrictions could be challenged. In  District Collector of Hyderabad & Ors. v. M/s Ibrahim  & Co. etc.(1) this Court considered whether the Sugar  Control Order  1963 was protected under Article 358 and 359  because the  President  had declared that state of  emergency.   The Sugar  Control  Order 1963 was made in  exercise  of  powers

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conferred  by  section 3 of the Essential  Commodities  Act. The  order placed restrictions on sale and delivery  by  the producers.   The  Order  also  controlled  the   production, distribution  of sugar by producers or  recognised  dealers. The  Order regulated the movement of sugar at  fixed  price. The state of emergency was declared on 28 October, 1962.  It was contended that on the issue of proclamation of emergency the  State is, for the duration of the emergency,  competent to  enact  legislation notwithstanding that it  impairs  the freedoms guaranteed by Article 19 of the Constitution.   The State was also said to be competent to take executive action during  the proclamation of emergency which the State  would for  the  provisions  contained  in  Article’  19  of,   the Constitution be competent to make. In Ibrahim’s case (supra) the  State  made  an  executive order.   It  was  said  "the executive action of the State Government which is  otherwise invalid  is  not  immune  from  attack,  merely  because   a proclamation of emergency is in operation when it is taken". The  Order of the State Government in that case was held  to be  contrary to statutory provisions contained in the  Sugar Dealers  Licensing Order and the Sugar Control  Order.   The executive  action was, therefore, held not to  be  protected under Article 358 of the Constitution. Originally,  the petitioners challenged the validity of  the Newsprint  Policy for 1971-72.  The petitions were  amended. As a result of the amendment the petitioners challenged  the validity of the 1972-73 newsprint policy.  The contention of the  petitioners is correct that the impeached policy  is  a continuation of the old policy.  Article 358 does not  apply to  executive action taken during the emergency if the  same is  a  continuation  of the prior  executive  action  or  an emanation  of the previous law which prior executive  action or  previous law would otherwise be violative of Article  19 or be otherwise unconstitutional.  The contention on  behalf of  the  Government  that the 1972-73  policy  is  protected during   the  proclamation  of  emergency  and  is  a   mere administrative  action is unsound Executive action which  is unconstitutional (1)  [1970] 3 S.C.R. 498. 775 is not immune during the proclamation of emergency.   During the proclamation of emergency Article 19 is suspended.   But it  would not authorise the taking of detrimental  executive action during the emergency affecting the fundamental rights in  Article  19  without any  legislative  authority  or  in purported  exercise of power conferred by any  pre-emergency law which was invalid when enacted. This  Court  in  State of Madhya Pradesh &  Anr.  v.  Thakur Bharat  Singh(1)  considered whether  the  State  Government could make an order under the Madhya Pradesh Public Security Act 1959 directing that Thakur Baharat Singh shall not be in any place in Raipur District and that he was to reside in  a named  town.   The Order was made on 24  April,  1963.   The Government  contended  in the Madhya Pradesh  case  (supra), that Article 358 protected legislative and executive  action taken after the proclamation of emergency which was declared on 20 October, 1962.  This Court rejected the contention  of the State that the Order was protected by Article 358.  This Court  held that if the power conferred by the 1959  Act  to impose  unreasonable  restrictions offended  Article  13  by taking away or abridging the rights conferred by Part El  of the  Constitution  the law in contravention  of  Article  13 would  be  void.   Article 358 suspends  the  provisions  of Article  19 during an emergency.  This Court said  that  all executive  action  which operates to the  prejudice  of  any

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person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule.  Article 358  expressly authorises the State to take  legislative  or executive action provided such action was competent for  the State   but   for  the  provisions  in  Part  III   of   the Constitution.   Article 358 does not invest the  State  with arbitrary  authority  to  take action to  the  prejudice  of citizens, and others; it merely provides that so long as the proclamation  of emergency subsists law may be  enacted  and executive  action  may  be  taken  in  pursuance  of  lawful authority,  which  if  the provisions  of  Article  19  were operative  would have been invalid.  Every act done  by  the Government  or by its officers must, if it is to operate  to the   prejudice  of  any  person,  be  supported   by   some legislative authority.  The Madhya Pradesh was (supra) is an authority  for  the proposition that Article  358  does  not operate  to  validate  any legislative  provision  which  is invalid  because of the constitutional prohibition.  In  the present case, the impugned newsprint policy is  continuation of  prior executive action and of previous law.   Therefore, in  our  judgment  there is no  merit  in  this  preliminary objection. The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right.  It was said to be a special right covered by several  statutes. The Imports (1)  [1967] 2 S.C.R. 454. 776 and  Exports Act 1947, the Imports Control Order, 1955,  the Essential  Commodities  Act 1955 and the  Newsprint  Control Order  1962 were referred to in support of  the  proposition that if the petitioners asked for a quota of newsprint  they had  to abide the conditions prescribed.  It was  also  said that the Press would have no special fundamental right under Article   19  (1)  (a).   The  legislative  measures   were, therefore,  said  by  the Government  to  be  regulation  of newspaper business even though there might be the incidental result  of curtailing circulation.  Reliance was  placed  on the decisions in Express Newspapers case (supra) and Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India  & Ors.(1), in support of the contention that there would be no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation.  The Newsprint Policy  was defended  by the Government to be in aid of  allowing  small newspapers to grow and to prevent a monopolistic combination of big newspapers. The  power of the Government to import newsprint  cannot  be denied.   The  power  of  the  Government  to  control   the distribution of newsprint cannot equally be denied.  It has, of course, to be borne in mind that the distribution must be fair  and equitable.  The interests of the big,  the  medium and   the  small  newspapers  are  all  to  be  taken   into consideration  at the time of allotment of quotas.   In  the present  case, there was some dispute raised as  to  whether there should be more import of newsprint.  That is a  matter of Government policy.  This Court cannot adjudicate on  such policy measures unless the policy is alleged to be malafide. Equally,  there  was  a  dispute  as  to  the  quantity   of indigenous  newsprint available for newspapers.  This  Court cannot go into such disputes. The  petitioners  raised  a  question  as  to  whether   the Newsprint  Control  Policy  is  a  newsprint  control  or  a newspaper control.  Mr. Palkhivala characterised the measure to  be  newspaper  control  with  degrees  of  subtlety  and

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sophistication.    Rationing  of  newsprint   is   newsprint control.   That is where quota is fixed.  Newspaper  control can  be said to be post-quota restrictions.  The  post-quota restrictions are described by Mr. Palkhivala to be newspaper control.    The   newspaper  control,   according   to   the petitioners, is achieved by measures adopted in relation  to common ownership units owning two or more newspapers.  These common  ownership  units are not allowed to  bring  out  new papers  of new editions of their dailies.  These are not  to have  interchangeability  of quota within  their  unit.   In addition  large papers are not allowed to have more than  10 pages.  It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge. (1) [1960] 2 S.C.R. 671. 777 Article 19(1) (a) provides that all citizens shall have  the right  to freedom of speech and expression.  Article 19  (2) states  that. nothing in sub-clause (a) of clause (1)  shall affect  the operation; of any existing law, or  prevent  the State  from making any law, in’. so far as such law  imposes reasonable  restrictions  on  the  exercise  of  the   right conferred  by  the said sub-clause in the interests  of  the security  of  the  State, friendly  relations  with  foreign States, public order, decency or morality, or in relation to contempt  of Court, defamation or incitement to an  offence. Although Article 19(1) (-a) does not mention the freedom  of the Press, it is the settled view of this Court that freedom of  speech and expression includes freedom of the Press  and circulation. In the Express Newspapers case (supra) it is said that there can  be no doubt that liberty of the Press is  an  essential part  of the freedom of speech and expression guaranteed  by Article  19  (1)  (a).   The Press has  the  right  of  free propagation  and  free  circulation  without  any   previous restraint on publication.  If a law were to, single out  the Press  for laying down prohibitive burdens on it that  would restrict the circulation, penalise its freedom of choice  as to  personnel,  prevent newspapers from  being  started  and compel’  the  press to Government aid.  This  would  violate Article  19  (1)(a), and would fall outside  the  protection afforded by Article 19 (2). In Sakal Papers case (supra) it is said that the freedom  of speech  and expression guaranteed by Article 19 (1) gives  a citizen  the  right to propagate and publish  his  ideas  to disseminate them, to circulate them either by words of mouth or by writing.  This right extends not merely to the  matter it  is  entitled  to circulate but also  to  the  volume  of circulation.   In  Sakal Papers case (supra)  the  Newspaper (Price  and  Page)  Act  1956  empoweredthe  Government   to regulate the prices of newspapers in relation to their pages and  sizes  and  to regulate the  allocation  of  space  for advertisement  matter.   The Government fixed  the  maximum- number  of  pages  that might be  published  by  a  newpaper according  to the price charged.  The Government  prescribed the number of supplements that would be issued.  This  Court held  that  the Act and the Order placed restraints  on  the freedom  of the press to circulate.  This Court  also  held. that,  the freedom of speech could’ no+. be  restricted  for the   purpose  of  regulating  the  commercial  aspects   of activities of the newspapers. Publication means dissemination and circulation.  The  press has to carry on its activity by keeping in view the class of readers,  the,conditions  of  labour,  price  of   material, availability  of  advertisements,  size  of  paper  and  the different   kinds   of   news  comments   and’   views   and

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advertisements  which  are to be published  and  circulated. The  law which lays excessive and prohibitive burden  which, would  restrict the circulation of a newspaper will  not  be saved by 778 Article 19 (2).  If the area of advertisement is restricted, price  of paper goes up.  If the price goes  up  circulation will go down.  This was held in Sakai Papery case (supra) to be  the direct consequence of curtailment of  advertisement. The  freedom of a newspaper for publish any number of  pages or to circulate it to any number of persons has been held by this  Court to be an integral part of the freedom of  speech and  expression.   This  freedom  is  violated  by   placing restraints  upon it or by placing restraints upon  something which is an essential part of that freedom.  A restraint  on the  number  of  pages, a restraint  on  circulation  and  a restraint  on  advertisements would affect  the  fundamental rights   under   Article  19  (1)(a)  on  the   aspects   of propagation, publication and circulation. This Court in Hamdard Dawakhana case (supra) considered  the effect   of   Drugs  and   Magic   Remedies   (Objectionable Advertisement) Act, 1954 in relation to Articles 19  (1)(a), 19  (1) (f), 19 (1)(g) and 19(6).  The Act in that case  was to  control the advertisement of drugs in certain  cases  to prohibit the advertisement for certain purposes of  remedies alleged  to  possess  magic qualities  and  to  provide  for matters connected therewith.  The Act was challenged on  the ground  of violation of fundamental rights.  The  ruling  of this   Court   in  Hamdard  Dawakhana  case   (supra)   that advertisement  is no doubt a form of speech and it  is  only when  an advertisement is considered with the expression  or propagation of idea that it can be said to relate to freedom of  speech.  The right to publish commercial  advertisements is not a part of freedom of speech. The  Additional Solicitor General contended that  the  news- print  policy  did  not violate Article  19  (1)  (a).   The reasons advanced were these.  The newsprint policy does  not directly  and immediately deal with, the right mentioned  in Article  19  (1)(a).  The test of violation is  the  subject matter and not the effect or result of the legislation.   If the  direct  object of the impugned law or action  is  other than  freedom of speech and expression Article 19 (1)(a)  is not  attracted  though the right to freedom  of  speech  and expression may be consequentially or incidentally  abridged. The rulings of this Court in Express Newspapers case (supra) and Hamdard Dawakhana case (supra) were referred to.  In the Express  Newspapers  case (supra) the Act was said to  be  a beneficent  legislation intended to regulate the  conditions of service of the working journalists.  It was held that the direct and inevitable result of the Act could not be said to be  taking  away  or abridging the  freedom  of  speech  and expression  of the petitioners.  In. the  Hamdard  Dawakhana case  (supra) the scope  and object of the Act and its  true nature and character were found to be not interference  with the  right  of freedom of speech but to deal with  trade  or business.  The subject matter of the import policy in the 779 present  case  was  rationing  of  imported  commodity   and equitable  distribution of newsprint.  The  restrictions  in fixing  the page level and circulation were  permissible  as directions, which were considered necessary in order to  see that  the imported newsprint was. properly utilised for  the purpose  for  which  the import  was  considered  necessary. Article 369 of the Constitution shows that rationing of  and distribution of quota of newsprint and regulation of  supply

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is  not  a direct infringement of Article  19  (1)(a).   The scarcity  of  newspapers Justifies the  regulation  and  the direction  in the manner of use.  The American  decision  in Red Lion Broadcasting Cc.. v. Federal Communications Com.(1) was relied on to show that neither regulation nor  direction with regard to medium of expression encroaches on the  First Amendment  right of the American  Constitution.   Regulatory statutes  which  do not control the content  of  speech  but incidentally limit the unfettered exercise are not  regarded as  a type of law which the First Amendment to the  American Constitution  forbade the Congress of the United  States  to pass.   ’the  decision in United States  v.  O’Brien(1)  was relied on as an authority for such regulation and control of the  content  of  speech.   Any  incidental  limitation   or incidental   restriction  on  the  freedom  of   speech   is permissible  if the same is essential to the furtherance  of important  governmental  interest in regulating  speech  and freedom. The  Additional  Solicitor General further put  emphasis  on the, pith and substance of the Import Control Act to control imports,  and  exports  for these reasons.   One  method  of controlling import is to regulate the use and disposition of the  goods  after they are, bought.  The decision  in  Abdul Aziz  Amiudin  v. State of Maharashtra(1)  was  referred  to indicate  that  the scope of control of import  extended  to every stage at which the Government felt it necessary to see that  the  goods  were properly  utilised.   Therefore,  the Government submission is that regulations regarding utilisa- tion of goods by importers after import is not a  regulation with regard to production, supply and distribution of  goods so as to attract Entry 29 List 11 of the Government of India Act,  1935  corresponding  to Entry 27 of  List  11  in  the Constitution.   It  was  said that even  if  there  was  any trenching on Entry 29 List II of’ the 1935 Act corresponding to  Entry  27  List II of the Constitution it  would  be  an incidental  encroachment not affecting the validity of’  the Act.   The directions in the control policy are,  therefore, justified  by  the  Government under clause 5  of  the  1955 Import  Control  Order read with section 3(1)  of  the  1947 Import ’and Export Act and they are also justified under the provisions of clause 3 of the Newsprint Control Order- 1962. (1)  [1969] 393 US 367-23L Ed. 2d. 371.  (2) [1968] 391 US 367-20 L. Ed. 2d. 672.. (3) [1964] 1 S.C.R. 830. 780 The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers.  Clause 3(5)  of the Control Order of 1962 indicated that the Controller  was to  have  regard to the principles.  The import  policy  was upheld  by the Government to have  administrative  character for  guidance. in the matter of grant of licences.   It  was said  that the impeached newsprint policy was given  to  the public  as information regarding principles governing  issue of  import  licences.   The import  policy  was  evolved  to facilitate mechanism of the Act.  The Import policy was said to  have necessary flexibility for six years prior to  April 1961.   The  Newsprint Policy  operated  successfully.   The Controller has not abused his power. Mr. Palkhivala said that the tests of pith and substance  of the  subject, matter and of direct and of incidental  effect of the legislation are relevant to questions of  legislative competence  but  they  are irrelevant  to  the  question  of infringement  of fundamental rights.  In our view this is  a sound and correct approach to interpretation of  legislative measures and State action in relation to fundamental rights.

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The  true test is whether the effect of the impugned  action is  to  take away or abridge fundamental rights.  if  it  be assumed that the direct object of the law or action has  to. be  direct  abridgment of the right of free  speech  by  the impugned  law  or  action  it  is  to  be,  related  to  the directness  of  effect  and not to  the  directness  of  the subject  matter of the impeached law or action.  The  action may  have a direct effect on a fundamental,  right  although its direct subject matter may be different.  A law’  dealing directly  with  the Defence of India or defamation  may  yet have  a  direct effect on the freedom  of  speech.   Article 19(2)  could  not  have  such  law  if  the  restriction  is unreasonable  even  if it is related  to  matters  mentioned therein.   Therefore,  the  word "direct" would  go  to  the quality  or character of the effect and not to  the  subject matter.   The  object  of the law  or  executive  action  is irrelevant  when it establishes the petitioner’s  contention about fundamental right.  In the present case, the object of the  newspaper  restrictions  has nothing  to  do  with  the availability of newsprint or foreign exchange because  these restrictions  come into operation after the grant of  quota. Therefore  the  restrictions are to control  the  number  of pages  or  circulation  of  dailies  or  newspapers.   These restrictions are clearly outside the ambit of Article  19(2) of the Constitution.  It, therefore, confirms that the right of  freedom  of speech and expression is abridged  by  these restrictions. The  question neatly raised by the petitioners  was  whether the  impugned Newsprint Policy is in substance  a  newspaper control.   A  newspaper control policy is  ultra  vires  the Import  Control Act and the Import Control Order.  Entry  19 of  List  1  of the 1935 Act  could  empower  Parliament  to control imports.  Both the State legislature and  Parliament have power to legislate upon newspapers 781 falling  under  Entry  17 of List III.  The  two  fields  of legislation  are  different.   The Import  Control  Act  may include control of import of newsprint but it does not allow control of newspapers.  The machinery of the Import  Control cannot be utilised to curb or control circulation of  growth or  freedom of newspapers in India.  The pith and  substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here.  The Newsprint  Control Policy  is found to be newspaper control order in the  guise of framing an Import Control Policy for newsprint. This  Court  in the Bank Nationalisation case  (supra)  laid down two tests.  First it is not the object of the authority making  the law impairing the right of the citizen  nor  the form  of action that determines the invasion of  the  right. Secondly,  it is the effect of the law and the  action  upon the  right which attracts the jurisdiction of the  court  to grant  relief.   The direct operation of the  Act  upon  the rights forms the real test. In  Sakal  Papers case (supra) this Court  referred  to  the ruling in Dwarkadas Shrinivas v. The Sholapur & Weaving  Co. Ltd.(,)’  that it is the substance and the practical  result of  the  act of the State that should be  considered  rather than  the pure legal form.  The correct approach _should  be to enquire what in substance is the loss or injury caused to the  citizen and not merely what manner and method has  been adopted by the State in placing the, restrictions. in  Sakal Papers case (supra) raising the price affected and infringed fundamental rights.  In Sakal Papers case (supra) this Court said  that the freedom of a newspaper to publish any  number

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of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression.  A restraint  placed  upon  either of them would  be  a  direct infringement   of  the  right  of  freedom  of  speech   and expression.   The impact on the freedom of the  press  would still be direct in spite of the fact that it is not said  so with  words.   No law or action would state  in  words  that rights  of freedom of speech and expression are abridged  or taken  away.  That is why Courts have to protect  and  guard fundamental  rights by considering the scope and  provisions of the Act and its effect upon the fundamental rights.   The ruling of this Court in Bank Nationalisation case (supra) is the  test  of direct operation upon the rights.   By  direct operation  is meant the direct consequence or effect of  the Act  upon the rights.  The decision of the Privy Council  in Commonwealth of Australia v. Bank of New South Wales(2) also referred  to  the  test,  as  to  whether/the  Act  directly restricted  inter-State  business of banking,  in  order  to ascertain whether the Banking Act 1947 in that case (1) [1954] S.C.R. 674.      (2) [1950] A.C. 235. 782 is  aimed  or  directed  at, and  the  purpose,  object  and intention  of the Act is restriction of  inter-State  trade, commerce and inter-course. The  various provisions of the newsprint import policy  have been  examined  to  indicate  as  to  how  the  petitioners’ fundamental  rights have been infringed by the  restrictions on  page limit, prohibition against new newspapers  and  new editions.  The effect and consequence of the impugned policy upon  the newspapers is directly controlling the growth  and circulation  of  newspapers.   The  direct  effect  is   the restriction  upon  circulation of  newspapers.   The  direct effect  is  upon growth of newspapers  through  pages.   The direct effect is that newspapers are deprived of their  area of  advertisement.   The  direct effect  is  that  they  are exposed  to  financial  loss.  The  direct  effect  is  that freedom of speech and expression is infringed. The Additional Solicitor General contended that a law  which merely  regulates even directly the freedom of the press  is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens.  He leaned heavily on American  decisions  in support of the submission  that  the right  of  the press of free expression is of  all  citizens speaking,  publishing and printing in all languages and  the grave concern for freedom of expression which permitted  the inclusion  of  Article  19 (1)(a) is not to  be  read  as  a command  that the Government of Parliament is without  power to  protect that freedom.  The Constitutional guarantees  of freedom of speech and expression are said by the  Additional Solicitor  General to be not so much for the benefit of  the press  as  for  the benefit of all people.   In  freedom  of speech,  according to the Additional Solicitor  General,  is included the right of the people to read and the freedom  of the press assures maintenance of an open society.  What  was emphasized on behalf of the Government was that the  freedom of  the  press  did not countenance the  monopolies  of  the market. It is indisputable that by freedom of the press is meant the right  of all citizens to speak, publish and  express  their views.   The freedom of the press embodies the right of  the people   to  read.   The  freedom  of  the  press   is   not antithetical  to  the  right of +,he  people  to  speak  and express. Article  13  of our Constitution states that  the  State  is prohibited from making any law which abridges or takes  away

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any  fundamental  rights.  Again, Article  19(2)  speaks  of reasonable  restrictions  on  the  exercise  of  fundamental rights   to   freedom  of  speech   and   expression.    Our Constitution  does not speak of laws regulating  fundamental rights.   But there is no bar on legislating on the  subject of  newspapers  as  long  as  legislation  does  not  impose unreasonable  restrictions  within the  meaning  of  Article 19(2).  It 783 is also important to notice as was done in earlier decisions of  this  Court  that our Article  19(1)(a)  and  the  First Amendment  of the American Constitution are different.   The First Amendment of the American Constitution enacts that the Congress  shall make no law....... abridging the freedom  of speech  or  of  the press.   The  American  First  Amendment contains  no  exceptions  like our Article  19  (2)  of  the Constitution.  Therefore,  American decisions  have  evolved their   own,  exceptions.  Our  Article  19(2)   speaks   of reasonable  restrictions.  Our Article 13  states  that  the State  shall  not  make  laws which  abridge  or  take  away fundamental rights in Part III of the Constitution.      The  concept  of regulation of fundamental  rights  was borrowed  and extracted by the Additional Solicitor  General from American decisions. In Citizen Publishing Co. v. United States(1)  the  power  of the  Government  to  regulate  the newspaper industry through the provisions of the Sherman Act was  recognised.  In that case the Court affirmed  a  decree requiring  the  separation  of  two  potentially   competing newspapers. The two newspapers entered into an agreement  to end  business or commercial competition between them.  Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in  violation of Sherman Act. The Citizen Publishing  Co.(1) case  (supra) held that the First Amendment in the  American Constitution  far  from providing an  argument  against  the application   of  the  Sherman  Act  under  the   facts   of the  case  provided  strong reasons  to  the  contrary.  The American decision   rested  upon  the  assumption  that  the widest  possible dissemination of information  from  diverse and antagonistic sources is essential to the welfare of the, public. The Sherman Act was invoked in that case to  prevent non-governmental   combinations  which  tended   to   impose restraints  upon  constitutional guarantee of  freedom.  The regulation of business is one thing. The American case is an instance  of  the  power  of  the  Government  to   regulate newspaper industry.           The   other   American  decision  on   which   the Additional  Solicitor  General relied is  United  States  v. O’Brien  (supra). In O’Brien’s case (supra) the  Court  held that one who had burnt one’s selective service  registration certificate did so in violation of a federal statute   making the knowing destruction or mutilation of such a  certificate a  criminal  offence.  It was contended  in  O’Brien’s  case (supra) that whenever the person engaging in the conduct  of burning  the certificate intends thereby to express an  idea the  idea  of both "speech" and "non-speech"  elements  were combined to the same course      (1) [1969] 304 U.S. 131-22L.Ed.2d. 148      15-L499Sup.C. 1./73 784 of  conduct.   It was held that there  was-  a  sufficiently important governmental interest in regulating the non-speech element.   The  Court  noticed there  that  such  incidental

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limitation on First Amendment freedom was justified  because an  important  and  substantial  governmental  interest  was involved.   The  Governmental  interest  was  found  to   be unrelated to the suppression of free expression and that the incidental  restriction  on  any  First  Amendment  freedoms involved  was  no greater than absolutely essential  in  the furtherance of the governmental interest. These  American decisions establish that a government  regu- lation is justified in America as an important or  essential government interest which is unrelated to the suppression of free expression.  This Court has established freedom of  the press to speak and express.  That freedom cannot be abridged and taken away by the manner the impugned policy has done. At this stage it is necessary to appreciate the petitioners’ contentions  that the newsprint policy of  1972-73  violates Articles 19 (1)(a) and 14 of the Constitution. The  first  grievance  is about Remark V  in  the  newsprint policy.  ’Remark V deals with dailies which are not above 10 pages  and  dailies over 10 pages.  With regard  to  dailies which  are  not  above  10 pages  the  policy  is  that  the computation  of entitlement to newsprint is on the basis  of the  actual  newsprint  consumption in  1970-71  or  1971-72 whichever  is  less.  The average circulation,  the  average number of pages and the average page area actually published are  all taken into consideration.  The petitioners  and  in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their  publications Maharashtra Times, Nav Bharat Times and Economic Times.  The average  circulation of these three publications in  1971-72 was higher than the average circulation in 1970-71.  It  is, therefore,  said  that  Remark V which shows  the  basis  of consumption  to be the lesser of the two years  will  affect their  quota.  The Government version is that the figure  of consumption in 1971-72 did not represent a realistic picture because  of three principal events during that year.   These were the Bangladesh Crisis, the Indo-Pak War in 1971 and the Elections.   The petitioners say that the quota for  1971-72 was  determined  in  April  1971  which  was  prior  to  the occurrence of all the three events.  Again, in the past when there was the Sino Indian Conflict in 1962 and the  Indo-Pak War  in 1965 the performance of the newspapers  during.  the years preceding those events was not ignored as was done  in the impugned policy for 1972-73.  With regard to  elections, the  petitioners  say that a separate additional  quota  has been  given.   In the policies prior to 1971-72  the  growth achieved  in  circulation as a result of the  grant  of  the additional quota 785 for  elections was taken into consideration  in  determining the   quota  for  the  following  year.   The   Petitioners, therefore,  contend that the policy in Remark V  instead  of increasing  circulation  win  result  in  the  reduction  of circulation.  The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation. With  regard to dailies over 10 pages Remark V  proceeds  on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the  admissible  circulation in terms of  1971-72  Newsprint Policy  plus  increases admissible in terms  of  Remark  VII whichever is more.  The Bennett Coleman Group contends  that the Times of India Bombay, the Times of India Delhi and  the Times  of India Ahmedabad had 13.13, 13.99 and 17.83 as  the average  number of pages in 1971-72.  The average number  of pages  in 1972-73 under Remark V of the Policy is  fixed  at

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10.  Therefore, the percentage of cut in pages is 23.8, 28.4 and  43.8 per cent respectively with regard to  these  three papers. The dominant direction in the newsprint policy  particularly in  Remarks V and VIII is that the page limit of  newspapers is fixed at 10.  The petitioners who had been operating on a page  level  of  over  10  challenge  this  feature  as   an infringement of the freedom of speech and expression. Remark V is therefore impeached first on the ground of fixa- tion  of  10  page  ceiling and secondly  on  the  basis  of allotment of quota. Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation.   On the  other hand newspapers which started after  1961-62  did not  have  sufficient quantity of newsprint  for  increasing circulation  and could not increase pages.  To. remedy  this situation   the  Government  case  is  that  the   impeached newsprint  Policy  of  1972-73 provided  in  Remark  V  for- newspapers operating on a page level of 10 or less quota  on an average page number and actual circulation of 1970-71  or 1971-72  whichever is less and 20% increase  for  increasing page  number  subject  to ceiling of 10  pages.   The  other provision  in  Remark  V for quota  relating  to  newspapers operating above 10 page level is an, average circulation  of 1970-71 and admissible circulation in 1971-72 plus increases admissible   whichever  is  more.   Thus  in  the  case   of newspapers  operating  on  10 or less  than  10  page  level additional  quota has been given to increase their pages  to 10.  But  the imposition of 10 page  ceiling  on  newspapers operating  on  a  page level above 10  is  said  to  violate Articles 19(1)(a) and 14. 786 The  Government  advances these six reasons  in  support  of their  policy.   First,  there  is  shortage  of  newsprint. Second, the average page number of big dailies is 10.3.  Out of 45 big dailies 23 operate on a page level of less than 10 and 22 operate on a page level of more than 10.   Therefore, the Government says that the average of all dailies is  5.8. Thirdly, the Government says that the 45 big dailies with  a circulation of 46.74 lakhs get about 1,16,700 metric tonnes. This  is about 59.9 per cent of the total  allocation.   The 346  medium  and small dailies with a circulation  of  41.60 lakhs  get  about 74,300. metric tonnes which  represent  as 40.1 per cent of the total allocation.  Fourthly it is  said that  the feature is to remedy the situation arising out  of historical  reasons.  Fifthly, the Government says that  the reduction in allotment is marginal.  By way of  illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes  less.  Sixthly, it is said that 500 dailies  applied for quota.  Newprint has to be equitably rationed.  Allowing some dailies more than 10 pages will adversely effect  those dailies with less than 10 pages. In  our view shortage of newsprint can stop with  allotment. If  the Government rests content with granting consumers  of newsprint  a  quantity equitably and fairly,  the  consumers will  not  quarrel  with  the  policy.   The  consumers   of newsprint are gravely concerned with the other features. The fixation of 1 0 page limit is said by the Government  to be  on  account of short supply of newsprint  and  equitable distribution of newsprint.  In the year 1972-73 the quantity available  for  allocation  was  2,15,000  tonnes.   In  the previous  year  the  quantity  was  2,25,000  tonnes.    The shortfall  is 10,000 tonnes.  The percentage therefore  will be 10,00OX100=4-1/2%    ----------

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   2,25,000 If  the  reduction is only 4-1/2% the cut in the  Hindu  was calculate  ’by Mr. Nambiar to be 16-10=6  viz.  6X100=37-1/2 per cent.                                        -----                                                    16 In   other  words,  the  cut  worked  out  to  much   higher proportion.   Mr. Palkhivala for the Bennett Coleman  group, Mr.  Daphtary for the Hindustan Times group  contended  that there  was no shortage in quantity of newsprint.  It is  not possible  to  go  into  these  disputes  of  figures.    The reduction   is   established   by   Mr.   Nambiar   to    be disproportionate to shortfall.  Particularly in the past, in the  year  1962 there was a shortage.  There was  a  cut  in quota.  The original cut was 5 per cent on those whose quota was above 100 tonnes but less than 1000 tonnes and 7-1/2 per 787 cent  for  those  whose quota was  1000  tonnes  and  above. Later,  the  cut was reduced to 2-1/2 per cent  and  applied uniformly  to those whose quota was 1000 tonnes  and  above. On  behalf  of the petitioners it was rightly said  that  if there  was any real shortage 20 per cent increase  in  pages under  Remark VII(C) to newspaper below 10 page level  would not have been possible. According  to the petitioners, there is no distinction  made by  the  Government between dailies in Indian  language  and English dailies and particularly big English dailies.  A big daily, according to the Government, is taken to mean a daily with  a circulation of more than 50,000 copies  irrespective of  the number of pages and it makes no distinction  between language and English dailies.  Out of the 45 big dailies  30 are  language  dailies and 15 are English dailies.   The  15  pB‘= English dailies operate on an average page level of over 10. The  average  of their page level has been  about  13.   The medium  English  dailies have had an average page  level  of above  11.  Of  the 30 language dailies  23  operate  on  an average page level below.  The language dailies, it is  said by  the petitioners, operate on an average page level  below 10  as they do not require more than 10 pages.  The  average of the page level of language dailies is about 8. Six of the big  language  dailies  have a page level of  about  9.  The petitioners,  therefore, contend that if the maximum  number of  pages is fixed at 10 the average page level of  the  big English  and  language dailies would come down  to  9.8  and their page level would become more or less equal to the page level  of medium dailies whose requirements are  much  less. It would, therefore, in our view amount to treating unequals equally  and  to benefit one type of daily at  the  cost  of another. Since 1957, dailies operating on a page level of 12 or  more have  not been given any increase in page level.  There  was no  fixed number of pages.  For determining quota  the  page level of 1957 was taken.  Dailies operating on a page  level of  less  than 10 have been granted increase in  pages  from time  to  time.  Such dailies operating on a page  level  of less than 10 have chosen to increase circulation rather than to  increase  the  number  of  pages,  because  of  lack  of advertisement  support.   From 1963-64  upto  and  including 1971-72 any quota for increase in pages could always be used for or adjusted against increase in circulation.   Similarly any quota for increase in circulation, could be used for  or adjusted  against increase in number of pages.  It  is  only because the newspapers were allowed to adjust between  pages and  circulation  in the past that the big dailies’  had  an actual page level of more than the permissible page level of 1957.  But most of the big language dailies which had a page

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level  of less than 10 did not increase their  pages  though they were permitted to do so. 788 In the past, newspapers which had 12 page limit were allowed to  increase  the  page  number.  This is  said  to  be  the justification on the part of the Government to wipe out  any inequity.  It appears that 19 language dailies reduced their page numbers on the basis of which their quota was fixed  in order  to increase their circulation.  If that is so,  there is no reason for giving them additional quota for increasing page  number  specially  by reducing the quota  of  the  big dailies  and imposing a 10 page limit on them.  It  is  also found  that 11 newspapers whose, quota was calculated  on  a page level above 10 have reduced their page numbers below 10 in  order to increase circulation.  These papers  have  also been  granted additional quota to increase their pages  upto 10.   The Government Annexure R-4 establishes that these  11 newspapers are obtaining double benefit.  First, because  of quota calculated on a page level above 10 and second because of  additional quota to increase pages upto 10 for they  had actually reduced their page number to 10. There  are  only 7 dailies of above 12 pages until  the  im- pugned  policy hit these.  Those are Amrita  Bazar  Patrike, Bombay  Samachar.   Hindu, Hindustan Times,  Indian  Express (Delhi, Bombay, Madurai, Vijayawada and Bangalore editions), the  Times  of  India (Bombay and Delhi  editions)  and  the Statesman.   Out of these 7 dailies 6 are  English  dailies. Bombay Samachar is a Gujarati daily.  The maximum page level fixed  at 10 and the prohibition against  the  adjustability between pages and circulation are strongly impeached by  the petitioners.   These  7 dailies except Bombay  Samachar  are common ownership units.  Some of them publish other  leading language  dailies also.  The maximum number of pages  at  10 will,  according  to  the petitioners,  not  only  adversely affect their profits but also deprive them of expressing and publishing  the  quality of writings and fulfilment  of  the role  to  be  played by the newspaper  in  regard  to  their freedom of speech and expression.  While it must be admitted that  the  language dailies should be allowed to  grow,  the English  dailies  should not be forced to languish  under  a policy  of regimentation.  It is therefore correct that  the compulsory  reduction to 10 pages offends  article  19(1)(a) and   infringes  the  rights  of  freedom  of   speech   and expression. It is further urged that the Government has fixed the  quota on  the  basis  of circulation  multiplied  by  pages.   The Government  has on the one hand compared the circulation  of the  big  dailies with the circulation of medium  and  small dailies  and on the other has ignored the difference in  the number of pages of big dailies as compared to the number  of pages  of the medium and the small dailies.  The  difference in pages coupled with the 789 difference in circulation affords a reason for difference in the percentage of total allocation given to the big  dailies as  compared  to  the medium and  the  small  dailies.  _The average number of pages for the big dailies is 10.3, for the medium  ’dailies  8.3, and for the small  dailies  4.4  (See Press in India 1971 page 134).  The percentage of allocation for  the  big dailies reflects really the  large  number  of pages they publish.  The big dailies therefore have not only larger requirements but also they render larger services  to the  readers.  The Newprint Policy of fixing the page  level at 10 is seeking to make unequals equal and also to  benefit one type of daily at the expense of another.

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The historical reason given by the Government for fixing the maximum  number  of pages at 10 is that the  effect  of  the policy  on  allowing  any  page  increase  and   circulation increase  from time to time has been to help the  growth  of the  Press.   This  is  how  newspapers  like  Ananda  Bazar Patrika,  Jugantar and Deccan Herald are said to  have  come up.  The Government also relies on the recommendation of the newspaper  proprietors in the year 1971 that 8 pages  should be considered the national minimum requirement for medium of information.   The  big English dailies had  the  number  of pages  over  12 in 1957.  Because of  adjustability  between pages  and circulation they had an actual page  level  which was  higher  than the permissible page level of  1957.   The petitioners  say  that this has not impeded  the  growth  of other  papers.  The policy prescribed by the  Government  of fixing  the  maximum page limit at 10 is  described  by  the petitioners  to  hit  the big dailies  and  to  prevent  the newspapers  from rising above mediocrity.  It is  true  that the  Government relied on an historical reason.  It is  said to prevent big newspapers from getting any unfair  advantage over newspapers which are infant in origin.  It is also said that  the Government policy is to help newspapers  operating below  10 pages to attain equal position with those who  are operating  above 10 page level.  But this intention to  help new  and young newspapers cannot be allowed  to  strangulate the freedom of speech and expression of the big dailies. The  Government has sought to justify the reduction  in  the page  level  to  10 not only on the ground  of  shortage  of newsprint  but  also on the grounds that these  big  dailies devote  high  percentage  of  space  to  advertisements  and therefore the cut in pages will not be felt by them if  they adjusted  their  advertisement space.  In our  judgment  the policy of the Government to limit all papers 790 at  10  pages is arbitrary.  It tends to treat  unequals  as equals  and  discriminates against those who  by  virtue  of their efficiency, standard and service and because of  their All-India stature acquired a higher page level in 1957.  The main   source   of  income  for  the  newspapers   is   from advertisements.   The loss of revenue because of the cut  in page level is said to be over several lakhs of rupees.  Even if  there is a saving in raw material by cut in  page  level there would be a revenue gap of a large sum of money.   This gap  could have been partly recouped by increasing the  page level.    The   newspaper   has   a   built-in    mechanism. Advertisements are not only the sources of revenue but  also one  of  the factors for circulation.  Once  circulation  is lost it will be very difficult to regain the old level.  The advertisement rate has undergone slight increase since 1972. As  a  result of the cut in page level the area  for  adver- tisements is also reduced. This  Court held in Hamdard Dawakhana case (supra)  that  an advertisement  is  no doubt a form of speech  but  its  true character  is reflected by the object for the  promotion  of which  it  is employed.  In Sakal Papers case  (Supra)  this Court  held that if the space for advertisement  is  reduced earnings would decline and if the price is raised that would affect  circulation.  It appears to us that in  the  present case,  ’fixation  of page limit will not  only  deprive  the petitioners  of their economic viability but  also  restrict the  freedom of expression by reason of the  compulsive  re- duction of page level entailing reduction of circulation and denuding the area of coverage for news and views. The estimated loss on account of reduction of page limit  is Rs.  39 lakhs in the case of Bennett Coleman group,  Rs.  44

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lakhs in the case of Hindustan Times and Rs. 38 lakhs in the case of the Hindu.  If as a result of reduction in pages the newspapers  will have to depend on advertisements  as  their main source of income, they will be denied dissemination  of news  and  views.   That will also  deprive  them  of  their freedom of speech and expression.  On the other hand, if  as a  result  of restriction on page limit the  newspaper  will have  to sacrifice advertisements ’and thus weaken the  link of  financial strength, the organisation may  crumble.   The loss on advertisements may not only entail the closing  down but also affect the circulation and thereby impinge on free- dom of speech and expression. The  reason given by the Government that the entitlement  on the  basic of the previous year has caused only  a  marginal loss in’ allotment is controverted by the petitioners. it is said  that if the total quantity of newsprint  available  is 2,15,000  tonnes  in 1972-73 the shortfall  is  only  10,000 tonnes  because in the previous year the quantity  available was 2,25,000 tonnes.  The Bennett Coleman group alleges that the actual circulation of Times of India Bombay 791 in 1971-72 was of 1,58,700 copies though the quota for  that year  was  calculated  on  the basis  of  a  circulation  of 2,02,825  copies  and a page level of 13  and  adjustability between  paces  and circulation were  permissible.   It  is, therefore,  said  that though the Times of India  under  the impeached  policy  would have an  allowable  circulation  of 2,08,920  and a page level of 10 it would not under the  new policy have any permission to adjust between pages and  cir- culation.  In fact, it is said that if the pages are reduced to  10, its circulation would fall even below that  of  last year by reason of the fact that owing to reduction in  pages the quality will suffer and the consequence will be downfall in circulation.  The petitioners therefore rightly emphasise that to equate the big English dailies which are in a  class by  themselves  with other dailies which need less  than  10 pages  indicates negation of an equitable  distribution  and proves irrational treating of dailies. The  justification  pleaded by the Government  is  that  big dailies chose. to increase pages rather than circulation  in the past.  In the past the newsprint allocation was based on the page level of 1957 and the circulation figures of  1961- 62.  The Government says that newspapers which started after 1961-62 were unable to increase their pages.  Therefore, the present policy is intended to remove that position.  In  our judgment  it  will depend on each paper as to  how  it  will grow.   Those  who are growing should not be  restricted  if they  can  grow  within their quota.  In  the  past  dailies having  less  than 10 pages were given  increases  and  were allowed to come up to 10 pages from 4 pages in 1961-62 and 6 pages in 1962-63.  Most of them could not even fully utilize the  page  increase allowed.  The present  impeached  policy seeks to remove iniquities created by previous policies.  It depends upon facts as to how much more newsprint a group  of newspapers  started after 1961-62 will require and  secondly whether they are in a position to increase the page  number. It also appears that 19 language dailies reduced their  page numbers  on the basis of which the quota was  calculated  in order  to  increase  their  circulation.   Therefore,  there appears  to be no justification for giving  them  additional quota  for increasing page numbers by reducing the quota  of the  big dailies by imposing upon them the 10 page  ceiling. The  10  page ceiling imposed affecting  22  big  newspapers operating  above 10 page level with approximate  circulation of over 23 lakhs i.e. more than 25% of the total circulation

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is  arbitrary and treats them equally with others  who,  are unequal  irrespective of the needs and requirements  of  the big   dailies   and  thus  violates  Article   14   of   the Constitution. The  impeached policy violates Article 14 because it  treats newspapers  which  are not equal equally  in  assessing  the needs and requirements of newsprint.  The Government case is that out of 792 35 newspapers which were operating on a quota calculated  on a higher page level than 10 pages 28 newspapers will benefit by the impeached policy of 1972-73.  But 7 newspapers out of 22 which were operating above 10 page level are placed at  a disadvantage   by  the  fixation  of  10  page   limit   and entitlement   to   quota  on  that  basis.   There   is   no intelligible  differentia.   Nor has  this  distinction  any relation  to  equitable  distribution  of  newsprint.    The impeached  policy  also offends Article 19 (1)  (a)  of  the Constitution.   Newspapers like 19 language dailies  reduced their  pages  in order to increase circulation  though  such language  dailies had prior to 1972-73 been given  quota  to increase  pages.  Under the impeached policy these  language dailies  are given additional quota to increase their  pages against to 10. The  basic entitlement in Remark V to quota  for  newspapers operating  above  10 page level  violates  Article  19(1)(a) because the quota is hedged in by direction not to  increase the page number above 10.  The reduction of page limit to 10 for  the aforesaid reasons violates Article 19 (1)  (a)  and Article 14 of the Constitution. The other features in the newsprint policy complained of are those  in  Remark  VII  (c) read with  Remark  VIII  of  the impeached  policy.   Remark  VII  (c)  allows  20  per  cent increase  to daily newspapers in the number of pages  within the ceiling of 10 over the average number of pages on  which the  basic  entitlement is fixed under Remark  V.  In  other words,  dailies with less than 10 pages are  prevented  from adjusting the quota for 20 per cent increase for increase in circulation.  The Bennett Coleman group says that their  Nav Bharat  Times,  Maharashtra Times and Economic  Times  would prefer  to increase their circulation.  Under Remark V  they are entitled to quota on the basis of consumption in 1970-71 or  1971-72 whichever is less.  This feature also  indicates that  the  newsprint  policy is not  based  on  circulation. Under Remark VII (c) these newspapers within the ceiling  of 10  can  get 20 per cent increase in the  number  of  pages. They  require  circulation more than the  number  of  pages. They are denied circulation as a result of this policy._ The big  English dailies which need to increase their pages  are not  permitted  to do so.  Other dailies which do  not  need increase in pages are permitted quota for increase but  they are  denied the right of circulation.  In, our  view,  these features were rightly said by counsel for the petitioners to be not newsprint control but newspaper control in the  guise of  equitable distribution of newsprint.  The object of  the impeached  policy  is  on  the one  hand  said  to  increase circulation and on the other to provide for growth in  pages for others.  Freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views. 793 Remark  VIII in the Newsprint Policy of 1972-73 imposes  two types  of restrictions.  First a daily is not  permitted  to increase its number of pages by reducing circulation to meet its individual requirements.  Secondly, dailies belonging to

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a common ownership unit are not permitted interchangeability between  them  of the quota allotted to each even  when  the publications  are  different  editions  of  the  same  daily published from different places. The  first  prohibition in Remark VIII against  increase  in pages,  by reducing circulation has been introduced for  the first  time in the policy for 1972-73.  The reason given  by the  Government  for this feature is that  newspapers  would obtain a quota on the basis, of a certain stated circulation and they should not be allowed to, reduce circulation.   The petitioners  say that quota is not granted on the  basis  of actual  circulation but is granted on the basis of  notional circulation  which means the actual circulation  of  1961-62 with  permissible increases year after year even though  the actual  circulation does not correspond to  the  permissible circulation  on which the quota was based year  after  year. The  Times of India Bombay in 1971-72 demanded quota on  the basis of 20 pages and a circulation of 1,70,000.  ’the Times of India was, allowed quota on the basis of 13.13 pages  and a  circulation  of  2,02,817.  The  actual  performance  was average  page number of 18.25 and circulation  of  1,54,904. In the past, adjustability between pages and circulation was permitted.   In our judgment, the petitioners correctly  say that  the individual requirements of the  different  dailies render it eminently desirable in some cases to increase  the number  of  pages  than  circulation.   Such  adjustment  is necessary  to  maintain  the quality and the  range  of  the readers  in  question.  The denial of  this  flexibility  or adjustment  is  in  our  view rightly  said  to  hamper  the quality, range and standard of the dailies and to affect the freedom of the press. The  restriction on the petitioners that they can use  their quota,  to  increase  circulation but not  the  page  number violates  Articles  19  (1) (a) as  also  Article  14.   Big dailies are treated to be equal with newspapers who are  not equal to them.  Again, the policy of 1972-73 permits dailies with  large  circulation  to  increase  their   circulation. Dailies  operating below 10 page level are allowed  increase in  pages.   This page increase quota cannot  be  used  for- circulation  increase.   Previously, the  big  dailies  were allowed  quota for circulation growth.  The  present  policy has  decreased the quantity for circulation growth.  In  our view  counsel  for  the petitioners rightly  said  that  the Government could not determine thus which newspapers  should grow  in  page and circulation and which  newspapers  should grow only in circulation and not in pages.  Freedom of press entitles  newspapers to achieve any volume  of  circulation. Though  requirements of newspapers as to  page,  circulation are both taken into consideration for fixing their quota 794 but the newspapers should be thereafter left free to  adjust their page number and circulation as they wish in accordance with the dictates of Article 19 (1)(a) of the Constitution. Counsel  for  the  petitioners  contended  that  the  second prohibition in Remark VIII in the Newsprint Policy prevented common  ownership  units  from adjusting  between  them  the newsprint  quota allotted to each of them.  The  prohibition is to use the newsprint quota of one newspaper belonging  to a  common ownership unit for another newspaper belonging  to that  unit.  On behalf of the petitioners it was  said  that from 1963-64 till 1966-67 inter,changeability was  permitted between  different editions of the same publication  to  the extent  of  20 per cent.  In 1967-68  and  1968-69  complete interchangeability  between different editions of  the  same newspaper  and between different newspapers and  periodicals

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was permitted.  In 1969-70 and 1970-71 the total entitlement was give" as an aggregate quota, though there was a separate calculation  made  for each newspaper.  The  present  policy does  not permit interchangeability.  Interchangeability  by using the quota for a new newspaper or a new edition or  for another newspaper of the same unit will put common ownership unit in an advantageous position.  Newsprint is allotted  to each  news;  paper.  The newspaper is considered to  be  the recipient.   A  single  newspaper  will  suffer  if   common ownership  units  are allowed to adjust quota  within  their group. The petitioners impeach Remark X in the Newsprint Policy for 1971-72  on the ground that a common ownership  unit  cannot bring  out  a  new newspaper or start a new  edition  of  an existing newspaper even from their allotted quota.   Counsel on  behalf  of the petitioners  rightly  characterized  this feature as irrational and irrelevant to the availability  of newsprint.   By  way of illustration it was  said  that  the Economic Times is sent by air to Calcutta and Delhi but  the common ownership unit is not permitted to reduce the  number of  copies  printed at Bombay and print copies  out  of  the authorised  quota  for circulation at  Calcutta  and  Delhi. Similarly,  it was said that there was no reason to  support the  policy in Remark X preventing a common  ownership  unit from publishing a new daily though a person who brought  out one  daily  was allowed to start a second daily.   This  was challenged  as discriminatory.  It is an abridgment  of  the freedom  of  expression to prevent a common  ownership  unit from  starting a new edition or a new newspaper.   A  common ownership unit should be free to start a new edition out  of their  allotted  quota and it would be logical to  say  that such a unit can use its allotted quota for changing the page structure and circulation of different editions of the  same paper.  It is made clear that newspapers cannot be permitted to  use  allotted  quota  for  starting  a  new   newspaper. Newspapers will 795 have to make necessary application for allotment of quota in that behalf.  It will be open to the appropriate authorities to deal with, the application in accordance with law. Until 1968-69 big dailies were treated alike but  thereafter from  1970-71 onwards dailies with circulation of more  than 1,00,000  copies have been put in a different  category  and given  a  lesser increase than those with a  circulation  of 50,000 to 1,00,000 copies though both are big dailies.   The policy of the Government is to level all papers at 10 pages. It  tends  to treat unequals. as equals.   It  discriminates against  those  who by virtue of their standing  status  and service  on all India basis acquired a higher page level  in the past.  The discrimination is apparent from Remark VII in the  newsprint Policy for 1972-73 by which  newspapers  with less than 1,00,000 circulation have been given 10%  increase in  circulation  whereas  those  with  more  than   1,00,000 circulation have been given only 3% increase in circulation. Mr. Palkhivala said the policy worked admirably in the  past because  adjustability  between pages  and  circulation  was permitted.   In our view the Newsprint Control has now  been subverted  to newspaper control.  The growth of  circulation does  not mean that there should not be growth in pages.   A newspaper  "expands  with the news and views.   A  newspaper reaches  different  sections.   It has to  be  left  to  the newspapers  as to how they will adjust their newsprint.   At one  stage the Additional Solicitor General said that  if  a certain quantity of steel was allotted the Government  could insist as to how it was going to be used.  It was said  that

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the output could be controlled.  In our view, newsprint does not  stand on the same footing as steel.  It has  been  said that freedom of the press is indispensable to proper working of  popular Government.  Patna jali Sastri, J. speaking  for this Court in Ramesh Thappar’s case (supra) said that "Thus, every   narrow  and  stringent  limits  have  been  set   to permissible  legislative  abridgment of the  right  of  free speech  and  expression, and this was doubtless due  to  the realisation  that freedom of speech and of the press lay  at the  foundation of all democratic Organization, for  without free political discussion no public education, so  essential for  the  proper  functioning of the  processes  of  popular Government,  is  possible".  It is appropriate to  refer  to what William Blackstone said in his commentaries :               "Every  free man has a undoubted right to  lay               what sentiments he pleases before the  public;               to  forbid this is to destroy the  freedom  of               the  press-,  but  if  he  publishes  what  is               improper, mischievous or illegal, he must take               the consequence of his own temerity." 796 The  faith of a citizen is that political wisdom and  virtue will sustain themselves in the free market of ideas so  long as  the channels of communication are left open.  The  faith in  the popular Government rests on the old dictum "let  the people have the truth and the freedom to discuss it and  all will go well".  The liberty of the press remains an "Art" of the Covenant" in every democracy.  Steel will yield products of steel.  Newsprint will manifest whatever is thought of by man.   The  newspapers give ideas. The newspapers  give  the people  the  freedom  to find out what  ideas  are  correct. Therefore,  the  freedom of the press is to be  enriched  by removing the restrictions on page limit and allowing them to have  new editions or new papers.  It need not  be  stressed that if the quantity of newsprint available does not  permit grant of additional quota for new papers that is a different matter.   The  restrictions are to be  removed.   Newspapers have  to  be  left free, to  determine  their  pages,  their circulation  and  their new editions within their  quota  of what has been fixed fairly. Clauses  3  and 3A of the 1962 Newsprint Order  prevent  the petitioners  from using white paper and writing paper.   The additional  Solicitor General at one stage said that it  was open to any newspaper to an unrestricted use of any form  of paper  so  long as newspapers do not  apply  for  newsprint. This argument exposes grave errors.  In the first place,  it shows  that there is no shortage’ of white  printing  paper. Secondly,  it will show that there is no  justification  for rationing of newsprint.  The cost of indigenous white  paper is  double  the cost of the imported newsprint.   This  high price  of  white  printing  paper  is  a  deterrent  to  any newspaper  to use it.     The periodicals are permitted  the use  of white    printing paper.  That is because of  Public Notice  No. 4-ITC(PN)/63 dated 1 1 January, 1963.  That  may be one of the reasons why periodicals have not complained of the Policy.  The periodicals can supplement their  newsprint quota.   Further,  the  clientele  of  the  periodicals   is different.   The Prices of periodicals are  also  different. In any event, it cannot be said that the newspapers can  buy white  printing paper to meet their requirements.   Nor  can such  plea  be  an answer to the  violation  of  fundamental rights in Article 19 (1) (a) or infraction of Article 14  by the provisions of the impeached Newsprint Policy. In  the present case, it cannot be said that  the  newsprint policy  is  a  reasonable restriction within  the  ambit  of

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Article   19(2).    The  newsprint   policy   abridges   the fundamental  rightS of the petitioners in regard to  freedom of  speech and expression.  The newspapers are  not  allowed their  right of circulation- The newspapers are not  allowed right  of  page  growth.   The  common  ownership  units  of newspapers cannot bring out newspapers or new editions.  The newspapers  operating  above 10 page  level  and  newspapers Operating below 10 page level have been treated equally  for assessing 797 the  needs  and requirements of newspapers  with  newspapers which  are  not  their equal, Once the quota  is  fixed  and direction to use the quota in accordance with the  newsprint policy  is made applicable the big newspapers are  prevented any  increase  in  page  number.   Both  page  numbers   and circulation are relevant for calculating the basic quota and allowance  for  increases.  In the garb of  distribution  of newsprint  the Government has tended to control  the  growth and circulation of newspapers.  Freedom of the press is both qualitative   and  quantitative.   Freedom  lies   both   in circulation  and  in content.  The  newsprint  policy  which permits  newspapers to increase circulation by reducing  the number  of pages, page area and periodicity, prohibits  them to  increase the number of pages, page area and  periodicity by  reducing circulation.  These restrictions constrict  the newspapers in adjusting their page number and circulation. The  Additional  Solicitor General relied  on  the  American decision in Red Lion Broadcasting Co. v. Federal  Communica- tions  Com. (supra) in support of the contention that  there should be an uninhibited marketplace of idea in which  truth will   ultimately   prevail   and  there   should   not   be monopolization   of  that  market  whether  it  be  by   the government itself or by a private licensee- The press is not exposed  to any mischief of monopolistic  combination.   The newsprint policy is not a measure to combat monopolies.  The newsprint policy should allow the newspapers that amount  of freedom  of  discussion and information which is  needed  or will  appropriately  enable the Members of  the  society  to preserve their political expression of comment not only upon public  affairs  but also upon the vast range of  views  and matters needed for free society. This Court in Sakai Papers case (supra) dealt with  measures empowering the government to regulate allocation of space to be  allotted for advertising matter.  This Court  held  that the  measure  had  the  direct  effect  of  curtailing   the circulation  of  the newspaper and thus to be  violation  of Article 19 (1) (a).  It was said on behalf of the Government that  regulation of space for advertisement was  to  prevent unfair  competition.  This Court held that the  State  could help or protect newly started newspapers but there could not be  an  abridgment of the right in Article 19(1)(a)  on  the ground of conferring right on the public in general or  upon a section of the public. The Additional Solicitor General contended that the business aspect  of  the  press  had  no  special  immunity  and  the incidental  curtailment  in  the circulation  could  not  be freedom  of speech and expression of the press.  This  Court in Sakai Papers case (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for adver- 798 tisement by each paper.  These measures were said to be com- mercial  activities  of newspapers.  This  Court  said  that restrictions  could  be  put upon the freedom  to  carry  on business but the fundamental right of speech and  expression

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could  not  be  abridged  or taken  away.   There  could  be reasonable  restrictions on that right only as  contemplated under Article 19(2). Mr. Nambiar contended that the Newsprint Policy did not fall within  clause 5(1) of the Import Control Order 1955 and  it was not validly made by the Central Government.  The records with  regard to the making and publication of the  newsprint policy  for  1972-73  were looked into by  this  Court.   It appears that the policy was published under the authority of the  Cabinet  decision.  The policy  was  therefore  validly brought  into  existence.  The various restrictions  of  the newsprint  policy have been examined earlier.   The  various restrictions imposed by the newsprint policy are found to be unconstitutional. Clause  3 of the Newsprint Control Order 1962 was  contended to  confer unfettered and unregulated power on an  executive officer.  Clause (3A) of the Order of 1962 was also said  to confer naked and arbitrary power.  The disability imposed on newspapers from using printing and writing paper was said to be   discriminatory.   The  Additional   Solicitor   General 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.  The error in the Government contention  is thereby exposed.  The periodicals were permitted in terms of public   Notice   4-ITC(PN)/63   dated   11   January   1963 unrestricted use of white printing paper to supplement their quota  of newsprint.  That again shows that  the  Government contention is wrong because there is restriction with regard to use of white printing paper.  The cost of white  printing paper  is high.  It is said that the cost is Rs.  2,750  per metric tonne for white printing paper compared to Rs.  1,274 of  imported  newsprint  and Rs. 1,362  of  Nepa  newsprint. Clause  3  (3A) of the Order provides that  no  consumer  of newsprint  other than a publisher of text books or books  of general  interest  shall use any kind of  paper  other  than newsprint  except  with  the permission in  writing  of  the Controller.   White  printing paper like  newsprint  can  be rationed.  The distribution is to be fair and equitable.  It is necessary also to point out that text books and books  of general interest require facilities for using white printing paper.    Such  measures  with  regard  to   rationing   are defensible.   It is true that no guidelines are to be  found in  clause  3 (3 Al) as to the circumstances under  which  a particular  consumer of newsprint or class of  consumers  of newsprint  other than a publisher of text books or books  of general  interest  should or should not be  allowed  to  use white   printing   paper.   The   Public   Notice   allowing periodicals 799 permission  to use white printing paper is  not  challenged. Periodicals were not before this Court.  It is therefore not necessary to express any opinion on clause 3 (3) and  clause 3 (3A) of the Control Order. For  the foregoing reasons the newsprint policy for  1972-73 violates  Articles  19 (1) (a) and 14 of  the  Constitution. The  restrictions by fixing 10 page limit in Remarks  V  and VIII of the policy infringe Articles 19 (1)(a) and 14 of the Constitution  and are therefore,  declared  unconstitutional and  struck down.  The policy of basic entitlement to  quota in Remark V is violative of Articles 19(1)(a) and 14 of  the Constitution  and is therefore struck down.  The measure  in Remark VII(a) is violative of Articles 14 and 19 (1) (a)  of the Constitution and is struck down. The  measures  in Remark VII(C) read with  Remark  VIII  are

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violative  of Articles 19(1)(a) and 14 of  the  Constitution and  are struck down.  The prohibition in Remark  X  against common    ownership    unit    from    starting    a     new newspaper/periodical   or   a  new   edition   is   declared unconstitutional  and  struck down as violative  of  Article 19(1)(a) of the Constitution. For  these  reasons  the petitioners  succeed.   The  import policy  for  newsprint  for the year 1972-73  in  regard  to Remarks V, VII(a), VII(c), VIII and X as indicated above  is struck down.  The parties will pay and bear their own costs. MATHEW, J. These four writ petitions concern the validity of sub-clauses  (3) and (3A) of Cl. 3 of the Newsprint  Control Order, 1962, passed by the Government of India under S. 3 of the  Essential Commodities Act, 1955, and the provisions  of the Newsprint Import Control Policy for 1972-73  hereinafter called the Newsprint Policy".  The petitioners challenge the validity  of  sub-clause  (3)  and (3A) of  Cl.  3  of  the- Newsprint Control Order and the provisions of the  Newsprint Policy  on  the  ground that they  are  violative  of  their fundamental right under Arts. 14 and 19 (1)(a)    of    ’the Constitution.  Newsprint,  which is a  variety  of  printing paper, is the principal raw material required for newspapers and periodicals.  Until 1957, the newsprint required in  the country  was being imported.  In or about the year  1957,  a mill called the National New-Sprint and Paper Mills Ltd. was started.   This  mill  is  the  only  source  of  supply  of indigenous  newsprint.  The newsprint produced in this  mill is quite inadequate to meet the needs of the country. The  production,  supply and distribution of  newsprint  has been   controlled  ever  since  1939.   Art.  369   of   the Constitution  vests  the control of production,  supply  and distribution of newsprint within the exclusive  jurisdiction of Parliament for a period of five years -L499Sup.  CI/73 800 from the commencement of the Constitution.  Newsprint is  an essential  commodity’ under the Essential  Commodities  Act, 1955 (see s. 2(a)(vii) of the Act). The bulk of newsprint has to be imported from foreign  coun- tries and the Central Government has a restricted system  of import   from  the  year  1943.   The   Central   Government promulgated  the  Import  (Control)  Order,  1955,  in   the exercise,  of the powers conferred by sections 3 and  4A  of the  Imports and Exports (Control) Act, 1947, and  cl.  3(1) thereof reads as follows :               "3.  Restrictions of Import on certain  goods-               (1) Save as otherwise provided in this  Order,               no  person  shall  import  any  goods  of  the               description  specified in Schedule  1,  except               under, and in accordance with, a licence or  a               customs clearance permit granted by the entral               Government  or  by any  officer  specified  in               Schedule II". White printing paper (excluding laid marked paper which con- tains mechanical wood pulp amounting to not less than 70 per cent of the fibre content) is included as item 44 in Part  V of Schedule I to that Order. Licence  was granted to publishers of newspapers  till  1962 for import of newsprint in accordance with the Import  Trade Control policy promulgated from time to time,: On January 17, 1962, in the exercise of the powers under cl. 3  of  the  Essential Commodities  Act,  1955,  the  Central Government  promulgated the newsprint Control  Order,  1962. Clause 3 and Schedule I of the Order are as follows "3.  Restrictions  on acquisition, sale and  consumption  of

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newsprint :-               (1)   No  person other than an importer  shall               acquire   newsprint   except  under   and   in               accordance with the terms and conditions of an               authorisation  issued by the Controller  under               this Order.                (2)  No dealer in newsprint shall sell to any               person newsprint of any description or in  any               quantity  unless  the sale to that  person  of               newsprint  of  that  description  or  in  that               quantity is authorised by the Controller.               (3)   No  consumer of newsprint shall, in  any               licensing period, consume or use newsprint  in               excess  of  the  quantity  authorised  by  the               Controller from time to time.  all dailies with a circulation  of  41.60  which  represent  aUf  KHANNA AND Y. V. CHANDRACHUD, JJ.] 801               SCHEDULE-1               1.    White  printing  paper  (excluding  laid               marked  paper) with fibre Content of not  less               than 70 per cent mechanical wood pulp.               2.    Glazed newsprint.               3.lndigenous  newsprint manufactured  by  NEPA               mills." On  December  29, 1962, the Central Government  amended  the said Order by promulgating a new sub-clause in cl. 3,  viz., cl. (3A) which runs as follows :-               "(3A)-No consumer of newsprint, other than  an               publisher  of text books or books  of  general               interest,  shall use any kind of  paper  other               than newsprint except with the permission,  in               waiting, of the Controller." The  policy  with regard to the import  and  utilization  of newsprint  is  enumerated from time to time  in  the  Import Trade   Control  Policy  (Red  Books).   The  Registrar   of Newspapers,  determines  the  newsprint  and  printing   and writing  paper  entitlement  of publishers of  each  of  the newspapers  in accordance with the aforesaid policy and  the Chief Controller of Imports and Exports issues licences  for import of newsprint in accordance with the determination  by the Registrar. The  imported newsprint together with that produced in  the country  has to be rationed among the various newspapers  in the Country. In  the year 1972-73, on account of suspension of U.S.  aid, there  was  a reduction of 11,000 tonnes in  the  import  of newsprint.    Therefore,   the   newsprint   available   for distribution was less than what it was in 1971-72. The provisions of the Newsprint Policy which are challenged in these petitions might be summarised as follows               1.    Fixation   of  basic   entitlement   for               newspapers  whose actual number of  pages  was               more than 10 during 1970-71 or 1971-72 on  the               basis of (i) an average of 10 pages, and  (ii)               either  the average circulation in 1970-71  or               admissible  circulation  in 1971-72  plus  in-               creases admissible under the Policy of 1971-72               whichever is more (Remark V).               2.    (i)  Reduction in increases from  5  per               cent to 3 percent for dailies with circulation               of  more than 1 lakh (Remark VII); and  giving               of 20 per cent increase to daily newspapers in               the number of

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             802               pages‘ within the ceiling of 10 pages provided               this increase is not utilised for the increase               of circulation (Remarks VII(C) and VIII).               (ii)  Prohibition  to increase the  number  of               pages,  page area and periodicity by  reducing               circulation  within the authorised  quota  but               they  are  permitted to reduce the  number  of               pages,   page   area   and   periodicity   for               increasing circulation (Remark VIII).               3. (i)     Prohibition  to use  the  newsprint               quota  of  one  newspaper/periodical  for  the               other  newspaper/  periodical in the  case  of               newspapers/periodicals  belonging to a  Common               Ownership Unit (Remark VIII); and               (ii)  Prohibition     to    start    a     new               newspaper/periodical  by the Common  Ownership               Unit (Remark VIII); and               4.    Denial of newsprint quota to               (i)   an  existing  newspaper belonging  to  a               Common Ownership  Unit which  has  not  been               granted newsprint quota; and               (ii)  additional   newspapers   sponsored   or               acquired by a common Ownership Unit  (Remark-               X).               5.    Prohibition to use white printing  paper               by  the  newspapers which have  been  allotted               newsprint (Cl. 3(3A) of the Newsprint  Control               Order). That  there  can be no unlimited right to acquire or  use  a scarce commodity like newsprint can admit of no doubt.   The argument  of  the petitioners that  Government  should  have accorded  greater  priority to the import  of  newsprint  to supply the need of all newspaper proprietors to the  maximum extent is a matter relating to the policy of import and this Court  cannot  be propelled into the  unchartered  ocean  of Governmental policy. Let   me  first  take  the  general  question  whether   the provisions of the Newsprint Policy and the Newsprint Control Order abridge the freedom of speech. The  freedom of the press is no higher than the, freedom  of speech  of a citizen under Art. 19(1)(a).  Art. 19 does  not specifically  provide  for the freedom of the press  as  the First Amendment of the Constitution of the U.S.A. does.  The freedom of the press is simply an emanation from the concept of  fundamental  right  of the freedom of  speech  of  every citizen (see Pandit M. S. M. Sharma v.  Shri   Sri   Krishna Sinha and Others(1). (1) [1959] Supp.   1 S.C.R. 806. 803 The  respondents contended that the Newsprint Control  Order and  the Newsprint Policy are concerned with regulating  the distribution of newsprint as a scarce commodity, and, if, in regulating   the   distribution  of   the   commodity,   the fundamental  right  of the freedom of speech  is  indirectly affected,  that  is  not an abridgment  of  the  freedom  of speech,  but  only  an abridgment of  speech  which  is  not prohibited by Art. 13(2).  In other words, the contention is that  the provisions of the Newsprint Control Order as  well as  those of the Newsprint Policy relate to  the  regulation and  distribution of newsprint as a commodity  necessitated by its scarcity and that these provisions are concerned,  if at  all,  with the business activity of the press  and  have nothing  to  do with the freedom of speech,-  and,  even  if there is an indirect impingment upon the freedom of  speech,

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it  is not an abridgment of that freedom as contemplated  by Art. 13(2). Art.  13(2) provides that the State shall not make  any  law which  takes away or abridges the rights conferred  by  Part III and any law made in contravention of this clause  shall, to  the  extent  of  the contravention,  be  void.   In  the context, what is prohibited by Art. 13(2) is, the making  of any law which takes away or abridges the right conferred  by Art.  19(1)(a).   What  Dr. Meiklejohn  said  of  the  First Amendment  of the Constitution of U.S.A. applies equally  to Art. 19(1)(a) read with Art. 13(2).  He said:               "That  amendment,  then, we may  take  it  for               granted,  does  not forbid ’the  abridging  of               speech.  But, at the same time, it does forbid               the abridging of the freedom of speech."                       (See Political Freedom, p. 21) Art,  19(1)(a) guarantees to the citizens,  the  fundamental right of the freedom of speech and Art. 19(2) enumerates the type of restrictions which might be imposed by law.  It does not  follow  from  this that freedom of  expression  is  not subject  to regulations which may not amount to  abridgment. It  is  a total misconception to say that speech  cannot  be regulated  or  that every regulation of speech would  be  an abridgment  of  the  freedom of  speech.   In  other  words, regulation of speech is not inconsistent with the concept of the  freedom,  of speech unless the  regulation  amounts  to abridgment  of that freedom.  No freedom, however  absolute, can  be free from regulation.  Though the right  under  Art. 30(1) is in terms absolute, this Court said In Re the Kerala Education  Bill,  1957(1),  that the  right  is  subject  to reasonable   regulation.    The  Privy  Council said   in Commonwealth of Australia v. Bank of New South Wales(2) that regulation  of  trade and commerce is  compatible  with  the absolute  freedom of trade and commerce. In fact,  the  very essence of freedom in an ordered society is regu- (1) [1959] S.C.R. 995. (2) [1950] A.C. 235, 310. 804 lation.   The  application  of the term  ’-abridge’  is  not difficult  in many cases but the problem arises  in  certain types  of  situations.   The  important  ones  are  where  a regulation is not a direct restriction of expression but  is designed to accomplish another objective and the impact upon the  expression is secondary or indirect.  This problem  may appropriately  be  formalized in terms of defining  the  key elements,  namely, "freedom of speech "abridge"  and  "law". These  definitions must be functional in character,  derived from the basic considerations underlying a system of freedom of  expression  (See  Thomas I- Emerson,  Toward  a  General Theory of First Amendment(1).  As I said, measures which are directed  at  other  forms  of activity  but  which  have  a secondary, indirect or incidental effect upon expression  do not  generally  abridge  the freedom of  speech  unless  the content of, the speech itself is regu lated.  Such  measures include  various types of tax and economic regulations,  the imposition   of   political  qualification   for   obtaining Government  employment or any other benefits or  privileges, the  activities of legislative committees and the  political restrictions  on  rights  of  aliens.   By  hypothesis,  the regulation  imposed is, taken by itself, a legitimate,  one, aimed  directly at the control of some other activity.   The question  is its secondary impact upon an admitted area,  of expression.   This is essentially a problem  of  determining when  the regulation at issue has an effect upon  expression which  constitutes an abridgment within the meaning of  Art.

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13(2).   In other words, the Court must undertake to  define and give content to the word "abridge" in Art. 13(2).   This judgment,  like the judgment in defining "free speech"  must be  made in the light of the affirmative  theory  underlying freedom of expression to which I shall come in a moment, and the  various conditions essential to maintaining a  workable system.    In   fact,   regular   tax   measures,   economic regulations,  social  welfare  legislation  like  a  general corporation tax, wage and hour legislation, factory laws and similar  measures  may,  of course, have  some  effect  upon freedom  of  expression  when applied to  persons  or  orga- nisations  engaged in various forms of  communication.,  But where the burden is the same as that borne by others engaged in  different  forms  of activity,  the  similar  impact  on expression  seems  clearly  insufficient  to  constitute  an abridgment  of  freedom  of expression.   The  use  of  such measures  to  control  the content of  expression  would  be clearly impermissible as that would be an abridgment of the’ freedom of speech. (see Thomas I. Emerson, Toward a  General Theory  of  First Amendment(1).  So also a special  tax  on press  alone,  or, a tax exemption available only  to  those with particular political views or associations would not be permitted (see Alice Lee Gorsjean v. American Press  Company (2 ) and Robert Murdock v. Commonwealth of  Pennsylvania(3). "In other words, though the speech itself be under the First Amendment, (1)  Yale Law Journal, Vol. 72, 962-63, 877. (2) 297 U.S. 233. (3) 319 U.S. 105. 805 the  manner of its exercise or its, collateral  aspects  may fall beyond the scope of the amendment"(1).  This principles illustrated  by  the case of Naresh  Shridhar  Mirajkar  and Others v. The State of Maharashtra and Another(2) where  the Bombay  High Court, by an order, prohibited the  publication of  the evidence of a witness and the question was,  whether the  order abridged the fundamental right of the freedom  of speech of the petitioner in the case.  This Court held by  a majority that it did not.  Gajendragadkar, C. J. said:               "As  we have already indicated,  the  impunged               order was directly concerned with giving  such               protection to the witness as was thought to be               necessary in order to obtain true evidence  in               the case with a view to do justice between the               parties.   If,  incidentally, as a  result  of               this  order, the petitioners were not able  to               report  what they heard in Court, that  cannot               be  said  to make the impugned  order  invalid               under  Article  19(1)(a) ....  Any  incidental               consequence which may flow from the order will               not introduce any constitutional infirmity  in               it". It  was said that this dictum of the learned  Chief  Justice was  made under the radiating influence of A. K. Gopalan  v. State   of  Madras(3)  and  that  the  decision   has   been practically overruled by Bank Nationalization Case (4). 1 do not wish to enter the controvercial thicket as to the extent to  which the principle laid down in Gopalan’s  case(3)  has been  eroded by the Bank Nationalisation case (4).   I  need only  say that in the area of free speech, the  principle  I have stated is well established.  The principle was  applied by this Court in Express Newspapers Private Ltd. and Another v.  The Union of India and others(5).  There  the  question was  whether  the  provisions  of  the  Working  Journalists (Conditions  of Service) and Miscellaneous  Provisions  Act,

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1955,  violated  the fundamental night  of  the  ’petitioner under Art. 19(1)(a).  The argument was that the decision  of the  Wage  Board  in fixing the rates and  scales  of  wages without  any consideration whatsoever as to the capacity  of the newspaper industry to pay the same, imposed too heavy  a financial  burden on the industry and, had disabled it  from exercising its fundamental right of the freedom. of, speech. But the Court said:               "The impugned Act,, judged by its  provisions,               was  not  such, a law but  was  a  beneficient               legislation    intended   to   regulate    the               conditions   of   service   of   the   working               journalists  and  the  consequences  aforesaid               could not be the               (1)   William  J. Brennan, Jr.,  "The  Supreme               Court and the Meiklejohn Interpretation of the               First Amendment," Harvard Law.Review, Vol. 79,               No.1 p.1               (2) (1966) 3 S.C.R.744,762.               (3)   (1960) S.C.R. 88.               (4) (1970) 3 S.C.R. 532.               (5)   (1959) S.C.R. 12.               806               direct and inevitable result of it.  Although,               there  could  be  no doubt  that  it  directly               affected  the  press  and  fell  outside   the               categories  of  protection mentioned  in  Art.               19(2), it had not the effect of taking away or               abridging the freedom of speech and expression               of  the  petitioner and  did  not,  therefore,               infringe Art. 19(1)(a) of the Constitution." The same principle finds expression in the decision in U. S. v.  O’ Brien(1) where the U.S. Supreme Court said that  even assuming  that  the  alleged communicative  element  in  the burning  of the Selective Service Certificate is  sufficient to  bring into play the freedom of speech, it combines  both ’speech’  and  ’non-speech’ ’elements, and when  speech  and non-speech  elements  are  combined in the  same  course  of conduct,  a sufficiently important governmental interest  in regulating  the  non-speech element can  justify  incidental limitations  on  the freedom of speech.  The  Court  further obseved that a government regulation is sufficiently  justi- fied  if  it  is  within the  constitutional  power  of  the Government;  if  it  furthers an  important  or  substantial governmental  interest;  if  the  governmental  interest  is unrelated  to  the suppression of free  expression  and  the freedom  of  speech is no greater than is essential  to  the furtherance of that interest. In  Sakal  Papers (P) Ltd. and others v. Union  of  India(2) this Court was concerned with the validity of the  Newspaper (Price  and Page) Act, 1956, and Daily Newspaper (Price  and Page)  Order, 1960.  The whole subject matter fell  directly under  Art.’  19(1)(a).   It  was  not  a  case  where   the impingement  on  the freedom of speech  was  indirect.   The legislation in that case directly restricted circulation  of newspapers.  The direct effect of the legislation, in  other words,  was to abridge the freedom of speech  by  curtailing circulation.   The  learned judges, after referring  to  the Express  Newspaper case(3) said that the impugned  law,  far from  being  one which merely interfered with the  right  of freedom of speech incidentally, did so directly. Mr.    Palkhiwala,  appearing  for the  petitioners  in  Writ Petition  No. 334 of 1971, submitted that the true  test  to decide Whether the freedom of speech of the petitioners has, been  abridged  is to see what is the direct effect  of  the

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Newsprint  Control  Order  and  the  Newsprint  Policy.   He submitted  that it is neither their pith and  substance  nor their subject matter that should be taken into consideration for  deciding the question whether they operate  to  abridge the  freedom  of  speech.  but  their  direct  effect.   The question to be asked and answered, according to counsel  is, what is the direct effect of the Newsprint Control Order and the Newsprint Policy ? (1) 391 U.S. 367.      (2) [1962] 3 S.C.R. 842, 866. (3)  [1959] S.C.R. 12.                             807 If,  on  account  of  scarcity  of  newsprint,  it  is   not possible,,  on  an equitable distribution, to allot  to  the petitioners,  newsprint to the extent necessary to  maintain the present circulation of the newspapers owned by them with same  page  level and, as a result, the circulation  of  the newspapers  or their page level has to be reduced, could  it be  contended that there has been abridgment of the  freedom of  speech  ?  Surely,  the  reduction  in  page  level   or circulation is the direct result of the diminished supply of newsprint.   Yet, I do not think that anybody Will say  that there  is  an abridgement of the freedom of  speech  of  the petitioners.   There might be an abridgement of speech,  but not an abridgment of the, freedom of speech. The   pith  and  substance  test,  although   not   strictly appropriate, might serve a useful purpose in the process  of deciding whether the provisions in question which work  some interference  with  the freedom of  speech  are  essentially regulatory in character (see the observation of Lord  Porter in Commonwealth of Australia v.Bank of New South Wales(.’)). With this background, let me proceed to consider more speci- fically the arguments of the petitioners. It  was  contended for the petitioners  that  the  newsprint policy  which  fixes a 10-page ceiling  for  calculation  of newsprint  quota  for their dailies which had a  page  level above ten directly abridges their fundamental right of  free speech and that the provision of the Newsprint Policy_ which provides for 20 per cent increase in the number of pages  to daily  newspapers within the ceiling of 10  pages  off-.ends Art. 14. Before  1972-73, the newsprint, allocation policy was  based on  the  page  level of 1957 coupled  with  the  circulation figures  of 1961-62, and all entitlements  were  calculated, with allowable increases and adjustments, from year to  year on  that basis.  As a result, the newspapers  which  entered the  field  after 1962-63 were at a  disadvantage  and  were pegged to their own lower page and circulation level.  There were  many  papers specially in the Indian  Languages  group where  the actual circulation even during  1970-71  exceeded the  notional  circulation  figure  which  was  arrived   at cumulatively  based on the 1961-62 figures.  The  result  of the  previous policies was that some news papers  which  had already a very large circulation at the time of introduction of  newsprint  rationing  and were  not  interested  in  in- creasing  circulation  substantially were able  to  use  the newsprint  allotted to them so as to increase the number  of pages.   On the other hand, the newspapers which were  at  a lower level of circulation but had the potential to increase the readership were restricted to the ad hoc percentage (1)  [1950] A.C. 235, 312-3. 808 increase  allowed under those policies but were  unable,  at the same time to increase the number of their pages as  they could not afford to cut down the existing circulation.   The growth  of such newspapers was, therefore, affected  by  the

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prior  newsprint allocation policies.  The Newsprint  Policy in  question seeks to remedy this situation.  It  recognises the circulation of all newspapers big and small as of  1970- 71 and provides for a small growth rate. 1970-71 is taken as the base year because, with the events in Bangla Desh, Indo- Pak  hostilities  and the State elections,  the  circulation figures  for  1971-72 would not  represent  the  circulation figures of a normal year. The  fixation  of  10-page ceiling for  the  calculation  of newsprint  quota has, among the big newspapers, affected  22 newspapers  which  , prior to the policy for  1972-73,  were actually operating on a page-level above 10. The Union of India justifies the reduction in the page level of these papers to 10 on three principal grounds : (1)  that these papers devote proportionately high percentage of space for  advertisements at high rates and that the cut in  pages ’imposed would not be felt by them if they rationalise their working  and adjust their advertisement space; (2) that  the imposition  of cut in the pages was necessary on account  of the  short  supply  of 11,000 tonnes  of  newsprint  due  to suspension  of U.S. Aid and (3) that the cut was  necessary to have fair and equitable distribution of newsprint amongst all newspapers and periodicals. The  objectives  sought to be achieved.  by.  the  Newsprint Policy  are  : (1) to correct the inequity of  the  previous newsprint  allocation  policies  as a result  of  which  the newspapers  which  had high page level in  1957  got  unfair advantage over the newspapers which were started  thereafter and  (2) to help the newspapers operating below 10 pages  to achieve,  a 10 page level by 20 per cent increase in  growth rate  so as to enable them to attain a position of  equality with those which were operating above 10-page level in 1970- 71. It  may be recalled that the Newsprint Policy  provides  for fixation  of basic entitlement for newspapers  whose  actual number of pages was more than 10 during 1970-71 and  1971-72 on  the basis of (1) an average of 10 pages, and (2)  either the average circulation in 1970 or admissible circulation in 1971-72, plus, increase admissible under the policy of 1971- 72.  whichever  is  greater.  Fixation  of  page  level  for calculating the entitlement of quota for a newspaper is  not a  new feature.. The previous policies provided  inter  alia that, a location would be calculated on the basis of a page level  upto  12 pages and restricted to an increase  of  not more  than  2 pages at a time.  Therefore,  even  under  the prior  policies, the newsprint allocation was calculated  on the basis of a maximum 809 page level which was 12 pages as mentioned above, except  in the case of six newspapers whose page level in 1957 was more than 12 pages. Dailies  are classified as ’big’, ’medium’ and  ’small’.   A newspaper  With a circulation of over 50,000 is ’big’,  that with a circulation ranging from 15,000 to 50,000 is ’medium’ and  that with a circulation below 15,000 is  ’small’.   The average  page number of big dailies was 10.3. Out of the  45 big  dailies,  23 operated on a page level of less  than  10 pages and 22 operated on a page level of more than 10.   The average page level of all the dailies was 5.8. Out of the 45 big  dailies, 30 are language, and 15 English.  All  the  15 big  dailies  in English operated on an average  page  level over  10  and their average page level was 13.45.  Even  the medium English dailies operated on a page level over 10  and the average of their page level was 11. 08. The  Government contended that the effect of the  policy  of

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allowing page increase and circulation increase from time to time has been to help the growth of press; that this is  how papers  like Anand Bazar Patrika Jugantar and Deccan  Herald (English) have come to the present level of circulation  and that   newspaper   proprietors  in   India   including   the petitioners  have unanimously recommended to the  Government in  January,  1969,  that a page level of 8  should  be  the national minimum requirement for a medium of information and that  it  should be permitted to reach as wide a  public  as possible. To examine the question whether Newsprint Policy is directed against  the big dailies and is calculated to strangle  them and  whether it would offend their fundamental rights  under Art.  14 and 19 (1) (a), it is necessary to have an idea  as to what are the objects sought to be achieved by the freedom of  speech  and  how they could be  achieved.   It  is  also necessary to have some notion about the concept of  equality in the distribution of a scare commodity like newsprint.  The  freedom of speech is a concept which was  transplanted into  our  Constitution  from the  First  Amendment  to  the Constitution  of U.S.A. In Express, Newspapers case(1)  this Court observed               "It is trite to, observe that the  fundamental               right to the freedom of speech and  expression               enshrined   in   Art.   19   (1)(a)   of   our               Constitution  is based on these provisions  in               Amendment 1 of the Constitution of the  United               States of America.....               (1)   (1959) S.C.R. 12.               810 As  to  what  the  ’freedom of speech’  means  there  is  no unanimity  A among the jurists.  Writing in  the  Federalist Papers(1), Alexander Hamilton observed :               "On  the subject of the liberty of the  press,               as  much  as has been said, 1  cannot  forbear               adding a remark or two    1    contend    that               whatever has been said about it     amounts to               nothing.   What signifies a  declaration  that               "the liberty of the press shall be  inviolably               preserved" ? What is the liberty of the  Press               ?  Who can eve it any definition  which  would               not leave the utmost latitude for evasion ?  I               hold it to be impracticable               Professor Chafee said    (2 ) :               "The  truth is, I think, that the framers  had               no  very clear idea as to what they  meant  by               "the freedom of speech or of the press" but we               can  say with reasonable assurance  ....  that               the  freedom which Congress was  forbidden  to               abridge  was  not, for  them.’  some  absolute               concept which had never existed on earth."               What Lincoln said on liberty is relevant here:               "The world has never had a good definition  of               [it]".               Justice   Holmes  gave  at   different   times               opposite   interpretations  of  the   historic               meaning of the First Amendment.  Speaking  for               himself and Justice Brandeis, he observed :(3)               "History seems to me against the notion (that)               the  First  Amendment left the common  law  of               seditious libel in force."               A  few years earlier, he had written  for  the               Court               "(T)he  main  purpose of  such  constitutional               provisions  ’to  prevent  all  such   previous

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             restraints...  as had been practices by  other               governments,’  and  they do  not  prevent  the               subsequent punishment of such as may be deemed               contrary to the public welfare". In  this  statement Holmes had the support  of  Cooley,  who maintained that its Blackstonian outlook "has been  followed by American commentators of standard authority as  embodying correctly   the idea incorporated in the constitutional  law of  the  country by the provisions in the American  Bill  of Rights." The values sought by society in protecting the right to  the freedom  of  speech would fall into four  broad  categories. Free   expression   is  necessary  :  (1)   for   individual fulfilment,   (2)   for  attainment  of   truth,   (3)   for participation by members of the society (1)  The Federalist, No. 84, at p. 514. (2)  Chafee, Book Review, 62, Harvard Law Review, 891, 898. (3)  Abrams v. U.S., 250 U.S. 616, 630. (4)  Patterson v. Colorado, 215 U.S. 454, 462. 811      in  political  or social decision making and  (4)-  for maintaining  the  balance ’between stability and  change  in society.   In the traditional theory, freedom of  expression is  not only an individual good, but a social good.   It  is the  best  process for advancing knowledge  and  discovering truth.   The  theory  contemplates more than  a  process  of individual  judgment.  It asserts that the process  is  also the best method to reach a general or social judgment.  In a democracy  the  theory  is  that all  men  are  entitled  to participate in the process of formulating- common decisions. (see  Thomas  I. Emerson, Toward a General Theory  of  First Amendment)  (supra).  The crucial point is not that  freedom of   expression  is  politically  useful  but  that  it   is indispensable to the operation of a democratic system.  In a democracy the basic premise is that the people are both  the governors and the governed.  In order that governed may form intelligent and wise judgment it is necessary that they must be  appraised  of all the aspects of a question on  which  a decision  has to be taken so that they might arrive  at  the truth.   And  this is why Justice Holmes said in  Abrams  v. United States (supra)               "But  when  men have realized  that  time  has               upset  many fighting faiths, they may come  to               believe  even more than they believe the  very               foundations  of  their own  conduct  that  the               ultimate  good  desired is better  reached  by               free  trade  in ideas-that the  best  test  of               truth  is the power of thought to  get  itself               accepted in the competition of the market, and               that  truth  is the only  ground  upon  which               their wishes safely can be carried out.   That               at   any   rate   is   the   theory   of   our               Constitution." Judge  Learned Hand said that the newspaper industry  serves one of the most vital of all general interests, namely,  the dissemination  of news from as many different  sources,  and with  as many different facets and colours as  is  possible; that   the   freedom  of  speech  presupposes   that   right conclusions  are  more  likely  to  be  gathered  out  of  a multitude of tongues, than through any kind of authoritative selection  (see United States v. Associated Press). (1)  The same sentiment was echoed by Justice Black when he said that the  freedom  of  speech rests on the  assumption  that  the widest  possible dissemination of information  from  diverse and antagonistic sources is essential to the welfare of  the

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public (Associated v. United States(2) But this  fundamental presupposition  is  seriously weakened by  concentration  of power.   Instead of several views of the facts  and  several conflicting opinions, newspaper readers in many cities,  or, still  worse, in wide regions, may get only a single set  of facts and a single body of opinion, all emanating from one or two owners.(3) Our Constitutional law has been singularly indifferent (1)  52 Federal Supplement 362, 372. (So Dist.  N.Y. (1943). (2)  326 U.S. Reports 1, 20 (1945). (3)  See   Zechariah  Chafee,  Jr.,  Government   and   Mass Communications, Vol.  1, pp. 24-25. 812 to   the  reality  and  implications   of   non-governmental obstructions to       the spread, of political truth.’  This indifference  becomes  critical  when  a  comparatively  few private  hands are in a position to determine not  only  the content of information but its very availability (see Jerome A.  Barren,  "Access  to the Press"-A  New  First  Amendment Right").(1) With  the concentration of mass media in a few  hands,  the chance  of  an  idea  antagonistic  to  the  idea  of   the, proprietors  of  the big newspapers getting  access  to  the market has become very remote.  It is no use having a  right to  express  your idea, unless you have ,got  a  medium  for expressing  it.   The concept of a free  market  for  ideas presupposes  that  every  type of ideas will  get  into  the market  and if free access to the market is denied  for  any ideas,  to that extent, the process of  competition  becomes limited  and  the chance of all the ideas  coming  to  the market  is  removed.  There can be no doubt  that  any  mass medium  having the greatest circulation will  influence  the political  life of the country because the ideal  for  which the  paper  stands has got the greatest  chance  of  getting itself  known  to  the public.  It  will  also  affect the economic pattern of the society.  Whether or not the  modern big newspaper is the cultural arm of the industry, it has an interest   in   the  present  method   of   production   and distribution, as it subsists mainly upon advertisement. The  Mahalanobic  Committee on Distribution  of  Income  and Levels  of  Living, in its report has,  after  stating  that economic  power is exercised also through control over  mass media of communication, said               "Of these, newspapers are the, most  important               and   constitute  a  powerful   ancillary   to               sectoral  and  group interests.   It  is  not,               therefore, a matter for surprise that there is               so  much inter-linking between newspapers  and               big business in this country, with  newspapers               controlled to a substantial extent by selected               industrial  houses directly through  ownership               as  well as indirectly through  membership  of               their  boards  of directors.  In  addition  of               course,   there   is  the   indirect   control               exercised through expenditure on advertisement               which  has been growing apace during the  Plan               periods.   In  a  study  of  concentration  of               economic  power in India, one must  take  into               account   this  link  between   industry   and               newspapers  which exists in our country  to  a               much larger extent than is found in any of the               other democratic countries in the world."               (1)   Harvard Law Review, Vol. 80, 1641, 1643.               (2)   Report of the Committee on  Distribution               of  income and levels of Living, Part  I,  pp.

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             51-52.               813 If  ever  there was a self-operating, market  of  ideas,  as Justice  Holmes assumed, it has long  since ceased to  exist with  the  concentration  of  mass  ,media  in-  few  hands. Protection  against  government is not enough  to  guarantee that  a man who has something to say will have a  chance  to say it.  The owners and the managers of the press  determine which  persons, which facts, which version of  facts,  which ideas  shall  reach the public.   Through  concentration  of ownership,  the variety of sources of news and  opinion  has become  limited.  At the same time, the citizen’s  need  for variety  and  new opinions has increased.   He  is  entirely dependent on the quality, proportion and extent of his  news supply,-the  materials for the discharge of his duties as  a citizen  and a judge of public affairs-on a few  newspapers. The Press Commission has observed in its report (Part 1,  p. 3 1 0) that since the essence of the process of formation of opinion  is  that  the public must have  an  opportunity  of studying  various points of view and that the exclusive  and continuous advocacy of one point of view through the  medium of  a newspaper which holds a monopolistic position  is  not conducive to the formation of healthy opinion, diversity  of opinion   should  be  promoted  in  the  interest  of   free discussion of public affairs, The mass media’s development of an antepathy to ideas  anta- gonistic to theirs or novel or unpopular ideas,   unorthodox points  of view which have no claim for expression in  their papers  makes  the  theory  of market  place  of  ideas  too unrealistic.  The problem is how to bring all ideas into the market and make the concept of freedom of speech a live  one having  its  roots  in reality.  A  realistic  view  of  our freedom of expression requires the recognition that right of expression is somewhat thin if it-can be exercised only  on the  sufferance of the managers of the  leading  newspapers. The  freedom  of speech, if it has to  fulfil  its  historic mission,  namely, the spreading of political truth  and  the widest  dissemination  of news, must be a  freedom  for  all citizens  in the country.  "What is essential" according  to Meiklejohn, "is not that everyone shall speak but that every thing   worth  saying  shall  be  said".(1)  If  media   are unavailable  for most of the speakers, can the minds of  the hearers be reached effectively?  It is here that creation of new opportunities for expression or greater opportunities to small  and  medium dailies to reach a position  of  equality with  the big ones, is as important as the right to  express ideas  without fear of governmental restraint.  It  is  only the  new  media  of communication that  can  lay  sentiments before the public and it is they rather than the  government who  can most effectively abridge expression  by  nullifying the  opportunity for an idea to win acceptance.  As  a  con- stitutional theory for communication of ideas, laissez faire is  manifestly irrelevant (see Barren, Access to  Press).(2) What  is, therefore, required is an interpretation  of  Art. 19 (1) (a) which focuses (1) Political Freedom, p. 26.   (2) Harvard Law Review, Vol. 80, 1641. 814 on  the idea that restraining the hand of the government  is quite  useless  in assuring free speech, if a  restraint  on access   is  effectively  secured  by  private  groups.    A constitutional prohibition against governmental  restriction on  the  expression is effective only  if  the  Constitution ensures an adequate opportunity for discussion. Any  scheme of distribution of newsprint which.  would  make

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the  freedom of speech a reality by making it  possible  the dissemination of ideas as news with as many different facets and  colours as possible would not violate  the  fundamental right  of  ’the freedom of speech of  the  petitioners.   In other  words, a scheme for distribution of a commodity  like newsprint  which will subserve the purpose of free  flow  of ideas  to  the  market from as  many  different  sources  as possible would be a step to advance and enrich that freedom. If the scheme of distribution is calculated to prevent  even an  oligopoly ruling the market and thus check the  tendency to  monopoly  in the market, that will not be  open  to  any objection   on  the  ground  that  the  scheme  involves   a regulation of the press which would amount to an  abridgment of  the  freedom of speech (see Citizen Publishing’  Co.  v. United States).(1) Promoting effective competition of  ideas in  the market alone will ensure the emergence of truth  out of  the  competition;  at any  rate  that  is  the   basis underlying   the   guarantee  of  free   speech,   and   any distribution of newsprint calculated to promote competition by  making the competitors equal in strength cannot  but  be characterized  as  a  scheme to advance  the  freedom.   One cannot  promote competition by making the strong  among  the competitors  stronger or the tall taller but by  making  the weak among them strong and the short tall.  So, even if  the scheme  of distribution aims at making dailies with  smaller page-level  and  less  circulation  attain  a  position  of’ equality  in  respect  of page level  and  circulation  with those,  having  a  page level of  10  and  enjoying  greater circulation,  that  would  not,  in  any  way,  be  open  to objection on the ground of violation of Art.  19 (1) (a).  I am  unable to understand how the fixation of a maximum  page level  of  10 for calculation of quota  of  newsprint  would offend the fundamental right of the freedom of speech of the petitioners.  In any scheme of distribution of a scarce com- modity,  there must be some basis on which  the  entitlement should  be  calculated.  It is because newsprint  is  scarce that  it is being rationed.  Ex-hypothesi, newsprint  cannot be  distributed  according to the needs of  every  consumer. The freedom of speech does not mean a right to obtain or use an unlimited quantity of newsprint.  Art. 19 (1) (a) is  not a  guardian  of unlimited talkativeness’. The  average  page level  of  all  the  dailies was 58.   The  Union  of  India contends  that  the  petitioners  themselves  recommended  a national  minimum page level of 8 for dailies and that,  but for    the   inordinate   space   devoted   to    commercial advertisement, 10 pages for a (1)  394 U.S. 131. 815 daily would be sufficient to express its views and  publish the news and that the petitioners beat the big bass drum  of Art. 19 (1) (a). not because their freedom of expression is abridged,  but  that  they are deprived of  a  part  of  the revenue from commercial advertisement. It is settled by the decision of this Court in Hamdard Dawa- khana (Wakf) Lal Kuan, Delhi & Another v. Union of India and Others(1) that commercial advertisement does not come within the ambit of the freedom of speech guaranteed by Art.  19(1) (a).   I  have  already indicated that  any  curtailment  of speech  occasioned  by  rationing of newsprint  due  to  its scarcity  can only affect freedom of speech  indirectly  and consequently there would not be any abridgement of it. It has been said that in the scheme of distribution of news- print, unequals have been treated equally and therefore, the Newsprint  Policy violates Art’ 14 of the Constitution.   To decide  this question regard must be had to the criteria  to

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be  adopted  in  distributing the material  resources  of  a community.   Arguments  about equality in  this  sphere  are really  arguments  about  the criteria  of  relevance.   The difficulties  involved  in  developing  such  criteria  have occupied   philosophers   for   centuries.    Despite    the refinements   that  distinguish  the  theories  of   various philosophers.,  most such theories represent  variations  on two  basic  notions  of equality :  numerical  equality  and proportional equality.  The contrast between the two notions is  illustrated  by the difference between the right  to  an equal  distribution  of  things and the  equal-  right  with respect to a distribution of such things.  According to  the former, each individual is to receive numerically  identical amounts  of  the  benefit being distributed  or  the  burden imposed in the public sector, whereas the latter means  only that  all  will  receive  the  same  consideration  in   the distributional  decision,  but that  the  numerical  amounts distributed   may  differ.   Proportional   equality   means equality   in  the  distribution  according  to   merit   or distribution-  according  to  need  (see  Developments-Equal Protection).  (2)  But  the  Supreme  Court  of  U.S.A.  has departed  froth  this traditional aproach in the  matter  of equality   and  has  adopted  a  more  dynamic  concept   as illustrated  by the decision in Griffin v.  Illinois(")  and Douglas  v. California. (4) In these cases it was held  that the  State  has  an affirmative duty  to  make  compensatory legislation  in  order  to make men equal  who  are  really, unequal  has undergone radical other words, the  traditional doctrine  that the Court is concerned with  formal  equality before  the law and is not concerned to make men  equal  who are really unequal has under gone radical (1) [1960] 2 S.C.R. 671, 688-90 (2) Harvard Law Review,  Vol. 82, p. 1165. (3) 351 U.S. 12. (4) 372 U.S. 353. 816 change  in the recent years as illustrated by  these  cases. Justice Harlan dissented both in Griffin’s case and Douglas’ case  and his dissenting opinion in the former case  reveals the  traditional and the hew approaches and also  highlights the length to which the majority has, gone :               "The  Court thus holds that, at least in  this               area of criminal appeals, the Equal Protection               Clause  imposes on the States  an  affirmative               duty  to  lift  the  handicaps  flowing   from               differences  in economic circumstances.   That               holding  produces the anomalous result that  a               constitutional  admonition  to the  States  to               treat  all  persons  equally  means  in   this               instance that Illinois must give to some  what               is  requires others to pay for.... It  may  as               accurately be said that the real issue in this               case is not whether Illinois has discriminated               but whether it has a duty to discriminate." The  crucial question today, as regards Art. 14, is  whether the  command implicit in it constitutes merely a ban on  the creation  of  inequalities by the State, or, a  command,  as well,   to  eliminate  inequalities  existing  without   any contribution  thereto by State action.  The answer  to  this question, has already been given in the United States  under the equal protection clause in the two cases referred to, in certain  areas.  The Court, in effect, has began to  require the  State to adopt a standard which takes into account  the differing  economic and social conditions of  its  citizens, whenever these differences stand in the way of equal  access

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to  the  exercise of their basic rights.  It has  been  said that justice is the effort of man to mitigate the inequality of men.  The whole drive of the directive principles of  the Constitution  is  toward this goal and it is  in  consonance with the new concept of equality.  The, only norm which  the Constitution  furnishes  for distribution  of  the  material resources of the community is the elastic norm of the common good  [see Art. 39 (b) 1] 1 do not think I can say that  the principle  adopted for the distribution of newsprint is  not for the common good. That  apart, one of the objects of the Newsprint Policy  was to. remedy the inequality created by. the previous  policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10  or more.  I think the allowance of 20 per cent  increase for growth in page-level provided in Remark VII is based  on a classification and that the classification is grounded  on an  intelligible differential. having a nexus to the  object sought to be achieved. By, far the, most fundamental attack made by counsel for the petitioners  was  that  levelled against  the  provision  in Remark  VIII  which  provides that within  the  quantity  of newsprint authorised 817 for the licensing period, each newspaper/periodical will  be free  to  increase  circulation by reducing  the  number  of pages,  page area and periodicity, but will not be  free  to increase  the number of pages, page area and periodicity  by reducting circulation, to meet its individual  requirements. It was contended that this is direct inroad upon the freedom of  speech and that by-no stretch of imagination can  it  be characterized  as  newsprint control The argument  was  that when  once  the  quota has  been  determined  and  allotted, further direct-ions as regards circulation or page number is nothing  but  brazen-faced trespass into the domain  of  the guaranteed  freedom.   It was said that once the  quota  has been  fixed  and allotted, the control over newsprint  as  a commodity  was  over  and any  stipulation  as  regards  its utilisation  thereafter  can  only sound  in  the  realm  of abridgment of the freedom of speech. Now, let me examine this argument with the respect which  it deserves.  If the entitlement of a consumer of newsprint  is calculated on the basis of page-level and circulation of the newspaper,  I  think  it would be an integral  part  of  any system  of  rationing to tell the consumer  that  he  should maintain the page level and circulation of the paper.   That apart,  as Meiklejohn said-and that, is  plain  commonsense- "First,  let  it  be  noted, that by  these  words  (First Amendment)  Congress  is not debarred from all  action  upon freedom of speech.  Legislation which abridges that  freedom is  forbidden,  but not legislation to  enlarge  and  enrich it."(1) These remarks apply with equal force to Art. 1 9  (1 )  (a)  read with Art. 13(2).  Any law or  executive  action which advances the freedom of speech cannot be considered as an abridgment of it.  The provision in question does not say that  the  proprietor  or publisher of  a  newspaper  should reduce its circulation.  If the provision had said that  the proprietor  or publisher must reduce the circulation of  the newspaper,   one  could  have  understood  a  complaint   of abridgment  of  the freedom of speech.   The  provision,  in effect,   only   tells  the  proprietor/publisher   of   the newspaper: "maintain the circulation at the present level or increase if it you like by reducing the page lever’.   Would this  amount to an abridgment of the freedom of  speech?   I think  not.   The  freedom of speech is  only  enriched  and

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enlarged. it was contended that a proprietor/publisher of a  newspaper has the undoubted freedom to increase its page level  within the  authorised  quota  and the provision  in  question,  by insisting  that  page  level  should-not  be  increased   by reducing circulation, has interfered with that freedom.   It was  argued  that  if  the provision  in  question  had  not insisted  upon  maintaining the circulation at  the  present level,  the publisher could have reduced the circulation  of the  newspaper  and increased the number of its  pages  and, increas- (1)  See Political Freedom, p. 19. 818 ing  the number of pages at the expense of circulation is  a matter of freedom included within the concept of the freedom of  speech.  I cannot agree.  Suppose, the provision in  the Newsprint  Policy had simply said that the proprietor  of  a newspaper  is not allowed to reduce its present  circulation and  stopped there ? What would have been the effect  ?  The effect would have been the same, namely, that the proprietor would  not have been entitled to increase the page level  of the  newspaper within the authorised quota.  The  incidental effect  of  the  direction to maintain  the  circulation  or increase  it  would be to tell the proprietor  or  publisher riot; to increase the number of its pages.  If the Newsprint Policy could legitimately say, without abridging the freedom of  speech,  that a newspaper should  maintain  its  present circulation, the fact that it also said that it, should  not increase its page level and reduce circulation would not  in any  way  affect the question.  If telling  a  publisher  or proprietor  to  maintain the circulation of a  newspaper  or increase it, is not an abridgment of the freedom of  speech, the further express direction in the Newsprint Policy not to increase  its page-level within the authorised  quota  would not  be an abridgment of the freedom, of speech as it is  an implied  consequence  of-  the- direction  to  maintain  the circulation. The matter can be looked at from another angle.  The consti- tutional  guarantee of the freedom of speech is not so  much for the benefit of the press as it is for the benefit of the public.   The freedom of speech includes within its  compass the right of all citizens to read and be informed.  In  Time v. Hill(1) the U.S. Supreme Court said:               "The  constitutional guarantee of  freedom  of               speech  and press are not for the  benefit  of               the  press so much as for the benefit  of  all               the people." In  Griswold v. Connecticut(2) the, U.S. Supreme  Court  was of the opinion that the right of freedom of speech and press includes  not only the right to utter or to print, but  the right to read. As  I  said.  the freedom of speech protects  two  kinds  of interest.  There is an individual interest, the need of  men to  express  their opinion on matters vital to  them  and  a social  interest  in  the attainment of truth  so  that  the country  may not only accept the wisest course but carry  it out  in  the wisest way.  "Now, in the method  of  political Government, the point of ultimate interest is not the  words of  the speakers, but the minds of hearers....  The  welfare of the community requires that those who decide issues shall understand  them"(3).   "The general  principles  underlying first  amendment safeguards may, for present  purposes,  be reduced  to three judicially recognized  specifics.   First, Professor Alexander. (1) 385 U.S. 374.                 (2) 381 U,S. 479, 482.

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(3) Meiklejohn, Political Freedom P. 26. 819 Meiklejohn’s assertion that the first amendment was intended to  define not an individual right to speak, but  rather,  a community   right  to  hear  has  been  assumed   by   modem constitutional  decision (Rosenblatt v. Baer(1),  Lamont  v. Postmaster  General (2) Roth v. United States(3),  Stromberg v.  California(4)"(see  Paul Goddstein,  Copyright  and  the First Amendment(5).  That the right of the public to-hear is within  the concept of the freedom of speech is  also  clear from  the pioneering opinion of Justice Burger, as  he  then was,  in Office of Communication of United Church of  Christ v. F. C.C.(6). The learned judge emphasised principally  the primary  status of "the right of the public to be  informed, rather  than any right of the Government,  any  broadcasting licencee or any individual member of the public to broadcast his own particular views on any matter." If  the right of the public to hear and be informed is  also within the concept of the freedom of speech, the government, when  it insists upon, the newspapers concerned  maintaining their  present  level of circulation does  not  abridge  the freedom  of  speech but only enriches and enlarges  it.   In other words, under the theory of the freedom of speech which recognises  not only the right of the citizens to speak  but also  the  right of the community to hear, a policy  in  the distribution of newsprint for maintenance of circulation  at its  higher possible level, as it furthers the right of  the community  to  hear,  will  only  advance  and  enrich  that freedom. At present, our circulation is only 1.3 copies for every 100 people  and  4.6  copies  for every  100  literates  in  the country.   Circulation  must be doubled if the press  is  to reach  ’all  the  literates  in  the  country.   This  is  a sufficient justification for a circulation oriented  policy. Newsprint  which  is in short supply must be used so  as  to help  to achieve the widest possible dissemination  of  news and  at  the same time meet the demands of the  press  as  a whole. Under  Art. 41 of the Constitution the State has a  duty  to take effective steps to educate the people within limits  of its  available economic resources.  That includes  political education also. Public  discussion  of  public  issues  together  with   the spreading of information and any opinion on these issues  is supposed to be the main function of newspaper.  The  highest and  lowest  in  the scale of  intelligence  resort  to  its columns for information.  Newspaper is the most potent means for  educating  the people as it is read by those  who  read nothing  else and, in politics, the common in  an  gets  his education mostly from newspaper. (1)  383 U.S. 74, 94-95. (2)  381 U.S. 301. (3)  354 U.S. 476, 484. (4)  283 U.S. 359, 369. (5)  Columbia Law Review, Vol. 70, 983, 989. (6)  Federal Reporter, 359, 2nd series, 994. 820 The  affirmative obligation of the Government to permit  the import  of newsprint by expending foreign exchange  in  that behalf is not only because press has a fundamental right  to express  itself, but also because the community has a  right to  be supplied with information. and the Government a  duty to  educate the people within the limits of  its  resources. The  Government  may, under cl. 3 of the  Imports  (Control) Order,  1955  totally prohibit the import of  newsprint  and

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thus  disable  any  person from carrying on  a  business  in newsprint, it  is in the general interest of the public  not to  expend  any  foreign exchange on  that  score.   If  the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from the need of the community for  information and the fundamental duty of  Government  to educate  the people as also to satisfy the  individual  need for  self  expression,  it is not for the  proprietor  of  a newspaper  alone to say that he will reduce the  circulation of  the  newspaper  and  increase its  page  level,  as  the community  has  an  interest in  maintaining  or  increasing circulation of the newspapers.  It is said that a proprietor of  a  newspaper has the freedom to cater to  the  needs  of intellectual  highbrows  who may choose to  browse  in  rich pastures  and  for that he would require more  pages  for  a newspaper  and that it would be a denial of his  fundamental right if he were told that he cannot curtail the circulation and  increase the pages.  A claim to enlarge the  volume  of speech by diminishing the circulation raises the problem  of reconciling  the citizens’ right to unfettered  exercise  of speech in volume with the community’s right to  undiminished circulation.   Both  rights  fall within the  ambit  of  the concept  of freedom of speech as explained above.   I  would prefer  to  give more weight to the community’s  claim  here especially  as I think that the claim to enlarge the  volume of  speech  at  the  expense  of  circulation  is  not   for exercising the freedom of speech guaranteed by Art. 19(1)(a) but for commercial advertisement for revenue which will  not fall within the ambit of that sub-article. In every society, there are many interests. held in  varying degrees,  by individuals and groups, viz., the interest  in, valuing  of,  or  concern, for free  speech,  peace,  quiet, protection  of  property, fair  trial,  education,  national security,  good highways, a decent minimum wage, etc.   "The attainment  of freedom of expression is not the sole aim  of the  good society.  As the private right of the  individual, freedom of expression is an end in itself, but it is not the only  end  of man as an individual.   In  its  social  and political  aspects,  freedom of expression  is  primarily  a process or a method for reaching other goals.  It is a basic element.  in  the  democratic way of life, and  as  a  vital process  it  shapes and determines the  ends  of  democratic society.   But it is not through this process alone  that  a democratic society will attain its ultimate ends"(1). (1)  See Thomas 1, Emerson, Toward a General Theory of’  the First  Amendment  Yale Law Journal, Vol. 72,  1962-63.  877, 907. 821 Therefore,  any  theory of freedom of expression  must  take into  account other values such as justice, equality,  moral progress, the right of tile public to education arising from the affirmative duty cast on the Government by the directive principles  to educate the people, apart from the  right  of the  community  to read and be informed  arising  under  the theory  of  the  freedom of speech itself.   Art.  19(2)  is concerned with laws restricting or abridging the freedom  of speech  for  protecting the more important values.   It  has nothing to do with regulation as to the, manner or method of speech, including its volume, when that regulation does  not touch  or  concern  the content of speech, and  when  it  is intended or calculated to subserve or promote some paramount social  interest(1).   The  question  then  is  whether  the Government  could, in the distribution of newsprint,  insist on the widest circulation possible to subserve the right  of the people to be educated in opposition to the right of  the

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proprietor  or  publisher  to  reduce  the  circulation  and enlarge  the  page number.  As I said,  any  regulation  not intended  to control the content of speech but  incidentally limiting its unfettered exercise will not be regarded as  an abridgment  of  the freedom of speech, if there is  a  valid governmental  interest arising from its duty to educate  the people  and  the value of the public of the  end  which  the regulation seeks to achieve is more than the individual  and social interest in the unfettered exercise in volume of  the right of free speech.  The formula in such cases is that the Court  must, balance the individual and social  interest  in freedom of expression against the social interest sought  by the regulation which restricts expression (supra). In  Konigsberg v. State Bar(2), Justice Harlan speaking  for the majority observed:, .lm15 ".  .  .  .  . . . On the  other  hand,  general  regulatory statutes, not intended to control the content of speech  but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First Fourteenth  Amendment forbade  Congress or the State to pass, when they have  been found   justified   by  subordinating   valid   governmental interests,  a  prerequisite to constitutionality  which  has necessarily involved a weighing of the governmental interest involved.   See e.g. Schneider v. State, 308 U.S. 147,  161; Cox v. New Hampshire; 312 U.S. 569; Prince v. Massachusetts, 321  U.S.  158;  Kovacs v. Cooper,  336  U.S.  77;  American Communications  Assn.  v.  Douds, 339 U.S.  382;  Breard  v. Alexandria 341 U.S. 622." It   was  contended  on  behalf  of  the  petitioners   that prohibition of interchangeability of quota between different newspaper,-, (1)  Criminal Appeal No. 152 of 1970 decided on 15-9-1972. (2)  366 U.S. 36, 50. 822 owned  by a common ownership unit, or different editions  of the  same newspaper owned by that unit is an  abridgment  of their  fundamental  right  under Art.  19(1)(a).   A  common ownership unit is defined to mean a newspaper  establishment or concern owning two or more newspapers including at  least one  daily  irrespective of the centers of  publication  and language  of  such papers.  The newsprint is allotted  to  a newspaper.   In  other  words, the unit of  allotment  is  a newspaper.   Clause  2(a)  of the  Newsprint  Control  Order defines "consumer of newsprint":               "consumer of newsprint means a printer or pub-               lisher of newspapers, periodicals, text  books               or   books  of  general  interest   who   uses               newsprint." The printer or publisher of each newspaper owned by a common ownership  unit  is a separate consumer and it  is  to  that consumer  that the quota is allotted.  The  application  for quota  made  by  the common  ownership  unit  specifies  the entitlement  of  each newspaper owned by it,  and  quota  is granted to each newspaper on that basis.  If it were open to a  common ownership unit to use the quota allotted  for  one newspaper  owned  by it for another newspaper,,  or,  for  a different   edition  of  the  same  newspaper,  that   would frustrate  the  whole  scheme of  rationing.   If  a  common ownership  unit  were  to  use the  quota  allotted  to  one newspaper   for  another  newspaper  owned  by  it,    could discontinue one newspaper and use its quota for another  and thus  secure an advantage over individual units owning  only one  newspaper.   It  is  on the basis  of  page  level  and circulation that quota is allotted to a newspaper and to say

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that it is open to a common ownership unit to use the  quota for a different newspaper owned by it or a different edition of  the  same newspaper would be tantamount to  saying  that since  the common ownership unit gets the ownership  of  the quota, it can use the quota for a newspaper owned even by  a different  proprietor.  I do not think that the  prohibition against   interchangeability   of  quota   among   different newspapers owned by a common ownership unit is violative  of Art.   19   (1)  (a).   In  my   opinion,   prohibition   of interchangeability  has  nothing to do with  Art.  19(1)(a). That a commodity rationed to a Unit must be utilized by that Unit  and no other unit is, I think, a regulation  necessary for the successful working of any system of rationing. It  was  then contended for the petitioners  that  a  common ownership unit is not permitted to start a new newspaper  or a  new  edition of an existing newspaper even out  of  their authorized quota whereas a person owning no other  newspaper can  start a newspaper and obtain a quota for the same,  and that this offends the fundamental right under Art.  19(1)(a) of  the  common  ownership units.  That  there  is  a  valid classification  between a person owning no newspaper  and  a common  ownership unit owning two or more newspapers  cannot be denied.  Any person desiring to 823 express  himself  by  the medium of a  newspaper  cannot  be denied  an opportunity for the same.  The  right  guaranteed under  Art. 19 (1)(a) has an essentially individual  aspect. A   common  ownership  unit  has  already  been  given   the opportunity  to express itself by the media of two  or  more newspapers.   If  a  common ownership unit were  to  go on acquiring or sponsoring new newspapers and if the claim  for quota for all the newspapers is admitted, that would  result in concentration of newspaper ownership and will  accelerate the  tendency  toward monopoly in  the  newspaper  industry. When the prohibition against interchangeability of newsprint quota  between  or among the newspapers owned  by  a  common ownership  unit is found valid, the restriction  imposed  on common ownership unit to bring out a new newspaper from  its authorised quota must be held to be valid and not offending Art. 19(1) (a).  If the quota allotted for a newspaper owned by  the common ownership unit cannot be used for  any  other newspaper, it stands to reason to hold that the  prohibition against bringing out a new newspaper cannot be challenged as violative  of  Art. 19(1) (a).  No doubt, if the  system  of rationing were not there, it would be open to any person  to own  or  conduct  any number of newspapers  but,  since  the quantity of newsprint available for distribution is limited, any system of rationing must place some limitation upon  the right of a person to express himself through newspapers. Mr. M. K. Nambiar, appearing for "The Hindu", contended that the Newsprint Policy is not law, that it is only an adminis- trative  direction  with no statutory backing  and  so,  the restrictions which the policy impose are not binding. The  Newsprint Policy was issued by the Central  Government, and  the  Chief  Controller  of  Imports  and  Exports,   as Additional  Secretary to Government, has  authenticated  it. The  Newsprint policy was placed before both the  Houses  of Parliament.   In  Joint  Chief  Controller  of  Imports  and Exports, Madras v. M/s.  Aminchand Mutha, etc.(1) this Court said :               authorities  in the matter of granting  import               licences,   the  Central   Government   issued               certain  administrative  instructions  to   be               followed by the licensing authorities." The  Import Trade Policy has been characterized as a  notice

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giving  information  to  the  public  as  to  the  principle governing,  the issue of licence for import of goods  for  a specified  period  (see  East  India  Commercial  Co.   Ltd. Calcutta   and   Another  v.  The  Collector   of   Customs, Calcutta(2):  Shah,  J. speaking for the Court in  Union  of India  and  Others v. M/s.  Indo Afghan Agencies  Ltd.  3  ) said: (1)  [1966] 1 S.C.R. 262, 266-68. (2)  [1963] 3 S.C.R. 338, 371-2. (3) (1968) 2 S.C.R. 366, 377. 824 .lm15 Court  has  held that Courts have the power  in  appropriate cases  to compel performance of the obligations  imposed  by the schemes upon the departmental authorities. . . . " Even if the Newsprint Policy is administrative in character, it is capable of founding rights and liabilities.  Generally speaking, it is true that an administrative order can confer no  justiciable  rights or impose duties  enforceable  in  a Court.   But  it can confer rights and impose  duties.   The limit within which such rights and duties will be recognised and enforced has been stated by an eminent author:               "Let us take one of Mr. Harrison’s  instances,               a regulation from the British War Office  that               no  recruit shall be enlisted who is not  five               feet  six inches high.  Suppose  a  recruiting               officer musters in a man who is five feet five               inches only in height, and pays him the King’s               shilling  ; afterwards the officer is sued  by               the   Government  for  being  short   in   his               accounts;  among other items he claims  to  be               allowed  the shilling paid to  the  undersized               recruit.  The Court has to consider and  apply               this  regulation and, whatever its effect  may               be,  that  effect will be given to it  by  the               court  exactly  as effect will be given  to  a               statute  providing  that  murderers  shall  be               hanged,  or  that  last wills  must  have  two               witnesses. It  was  contended  on behalf of the  petitioners  that  the direction  contained in the Newsprint Policy as regards  the utilization  of.  the newsprint after the allotment  of  the quota  is ultra vires the powers of the licensing  authority issuing the same.  It is said that after newsprint has  been imported,  there  was no Ion any power left in  the  Central Government or in the Chief Controller of Imports and Exports to  direct  the  manner  in which  it  should  be  utilized. Cl.5(1) of the Imports (Control) Order, 1955 provides;               "5. Conditions of Licenses : (1) The licensing               authority  issuing a licence under this  Order               may  issue the same subject to one or more  of               the conditions stated below :-               (i)   that  the goods covered by  the  licence               shall not be disposed of, except in the manner               prescribed  by  the  licensing  authority,  or               otherwise  dealt  with,  without  the  written               permission  of the licensing authority or  any               person duly authorised by it;"               (1) John Chimpman Gray, the Nature and Sources               of the Law, Second Edition               825 In  Abdul  Aziz Aminuddin v. State of  Maharashtra(1),  this Court said that the power conferred under s. 3(1) of the Act (Imports and Exports (Control) Act, 1947) is not  restricted merely to prohibiting or restricting imports at the point of

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entry  but  extends  also  to  controlling  the   subsequent disposal of the goods imported and that the person  licensed to  import  goods  would be amenable to the  orders  of  the licensing  authority with respect to the way in which  those goods are to be utilized.  This dictum was approved by  this Court  in State of West Bengal v. Motilal  Kanoria(2).   See also the observation of Sarkar, J. in East India  Commercial Co.  Ltd., Calcutta and Another v. The Collector of  Customs Calcutta(3),  at  p.  348.   Even  if  it  be  assumed  that Government  or the Chief Controller of Imports  and  Exports has  no  power under cl. 5(1)(i) of  the  Imports  (Control) Order,  1955,  to issue directions as regards  the  mode  of utilization of newsprint after its import, it is clear  that the Government has power by virtue of the provisions of  s.3 of the Essential Commodities Act, 1955, to pass an Order  as regards  the  utilization of newsprint, as newsprint  is  an ,essential  commodity’ under that Act (see s. 2(vii) of  the Act). The  only  other point which remains  for  consideration  is whether clauses 3(3) and 3(A) of the Newsprint Control Order violate Art. 14 of the Constitution.  None of the provisions of  the  Essential Commodities Act, 1955, is  challenged  as ultra  vires the Constitution.  The Newsprint Control  Order was  passed  under s. 3 of the  Essential  Commodities  Act, 1955.  Sections 3 and 4 of this Act are in pari materia with sections  3  and  4 of  the  Essential  Supplies  (Temporary Powers) Act, 1946.  These provisions were challenged, on the ground of excessive delegation of legislative power, in  the case of Harishankar Bagla and Another v. The State of Madhya Pradesh (4) . But this Court said that the preamble and  the body of the sections sufficiently formulate the  legislative policy. that the ambit and character of the Act is such that the  details  of  that  policy can only  be  worked  out  by delegating them to a subordinate authority within the  frame work-  of  that  policy and that s. 3  was  valid.   And  as regards s. 4 the Court said that the section enumerates  the classes  of persons to whom the power could be delegated  or sub-delegated  by  the  Central Government  and  it  is  not correct  to  say that the instrumentalities  have  not  been selected  by  the  Legislature itself.   Section  4  of  the Essential Commodities Act, 1955, provides that an order made under  s.  3 may confer powers and impose  duties  upon  the Central  Government or the State Government or officers  and authorities  of the Central Government or State  Government, and  may  contain directions to any State Government  or  to officers  and authorities thereof as to the exercise of  any such powers or the discharge of (1)  [1964] 1 S.C.R. 830, 837-8. (2)  [1966] 3 S.C.R. 933. (3)  [1963] 3 S.C.R. 338, 371-72. (4) [1955] 1 S.C.R. 380, 388-9. 826 any such duties.  It was, therefore, open to the  Government to  confer such powers upon the "controller" as  defined  in the Newsprint Control Order, 1962:               "2(b) Controller means the Chief Controller of               Imports  and Exports and includes any  officer               appointed   by  the  Central   Government   to               exercise  the powers of the  Controller  under               this Order." Sub-clause  (3A)  was introduced in cl. 3 of  the  Newsprint Control  Order,  1962, for a particular purpose.   There  is only a limited quantity of white printing paper.  In view of the shortage of white printing paper in the country, it  was considered  necessary by the Government to restrict its  use

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by consumers of newsprint who were getting quota of imported newsprint.    In  fact,  for  newspapers  and   periodicals, newsprint  is  the more acceptable raw material  than  white printing paper.  It was found that some of the more affluent papers  had started drawing heavily on the limited  quantity of  white  printing paper available, thereby  causing  great hardship  to  the  other consumers of  this  commodity  like Central  and  State Governments,  text-book  publishers  and students.   It was with a view to meet this  situation  that restriction on its use by a consumer of newsprint other than the person specified therein was imposed. The argument that unregulated discretion has been  conferred under  sub-clauses  3 and 3A of cl. 3 is not  correct.   The preamble and the provisions of the Essential Commodities Act furnish  sufficient guidance for the exercise of the  powers conferred.   It is impossible, in the nature of  things,  to specify  with greater particularity the guidelines  for  the exercise  of the powers conferred under these  clauses.   If the  conferment of the power upon the Government under s.  3 is  valid and is not open to attack under Art. 14,  1  think the power conferred upon the sub-delegate is also valid. It is not necessary for me to express any opinion as regards the maintainability of the writ petitions on the ground that the consumers of the newsprint in question are not  citizens and I do not express any opinion. I would dismiss the petitions without any order as to costs. BEG, J. The Writ Petitions before us challenge what is  des- cribed  as "News Print Policy" notified for the period  from April,  1971 to March, 1972.  As the  impugned  Notification does  not  mention the provision of law under which  it  was issued,  we have to scrutinise its contents to discover  the authority  for  its  promulgation.   It  is  headed  "Public Notice" on "Import Trade Control".  The subject is given  as "Import  Policy for News Print".  The "Policy" is  contained in a schedule annexed to the Notice.  The first of the 827 six  columns of the Schedule gives the serial number of  the item involved which is 44/V of the I T C Schedule.  Volume I of the ."Red Book" on Import Trade Control Policy, issued by the  Ministry of Foreign Trade, mentions, against item  44/V for  white  printing  paper, that import  policy  for  "News Print"  Will be announced later.  The impugned items,  found in the remarks’ column, contain that announcement applicable from  April,  1971  to March, 1972.   A  subsequent  similar notification  dated 11-41972 shows that  identically  worded terms  were to be applicable to the period from April,  1972 to  March,  1973,  and  these  are  also  assailed  by   the petitioners. Apparently,  the impugned remarks constitute conditions  for the  import  of  quotas  of  news  print  assigned  to   the licensees.   They  are meant to be obeyed if  the  licensees want  their quotas.  The implication of such  an  imposition clearly  is that the licences could be revoked if  terms  of their grant are not complied with apart from other  possible consequences in the future.  It is alleged that these  terms interfere  with  the fundamental rights  of  petitioners  to freely  express their opinions through their newspapers  and to  carry on the manufacture and sale of newspapers  to  the public.  If, however, these terms and conditions do not fall under  any provision of law but interfere with the  exercise of petitioners’ fundamental rights, the question of  testing their reasonableness will not arise,. What is termed "policy" can become justiciable when it exhi- bits   itself  in  the  shape  of  even purported   "law". According  to Article 13(3) (a) of the  Constitution,  "law"

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’Includes "any Ordinance, Order, bye-law, rule,  regulation, notification,  custom  or usage having in the  territory  of India  the force of law".  So long as policy remains in  the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities  as declarations of what they are expected to do under it.  But, it cannot bind citizens unless the impugned policy is  shown to have acquired the force of "law".  Mr. Nambiar, appearing for  the  Hindu  Newspaper,  has,  therefore,  assailed  the impugned  items  of  the news print control  policy  on  the ground,  inter-alia,  that  the fundamental  rights  of  the petitioners  represented  by  him  cannot  be  curtailed  by anything less than "law". For  the reasons given by both my learned brethren  Ray  and Mathew  the impugned items of what is called the  "Newsprint Policy"  seem to me to be intended to have the force of  law which,  if not observed by the petitioners, will impede  and jeopardise the exercise by them of their fundamental rights. The intention behind the publication of the Newsprint Policy was obviously to bind the petitioners by the conditions laid down  in  the  remarks’ column.  It had,  therefore,  to  be brought  under some provision of law which  could  authorise the laying down of such binding conditions upon 828 those  who  run the newspapers and want  to  either  express their  opinions  freely  or to  carry  on  their  businesses without  let or hindrance.  I, seems to me that  this  Court should  not  hesitate to remove such  restrictions  if  they purport  to  have  the force of law. even if  they  are  not "law",  provided  they have the effect  of  restricting  the exercise  of  fundamental  rights.   This  effect  the  res- trictions  certainly have had and will have unless they  are removed   by  us.   According  to  the  petitioners,   their observance has entailed such heavy losses to them that  they may  have to stop doing their business if  the  restrictions continue. It is difficult to over-emphasize the importance of  Freedom of  the Press as one of the pillars of a Government "of  the people,.  by the people, and for the people".  I  may  quote what  Lord Bryce said in The American Commonwealth (New  and Revised Edition) (pp. 274, 275, 367):                "The  more  completely  popular   sovereignty               prevails  in  a  country,  so  much  the  more               important  is  it that the organs  of  opinion               should be adequate to its expression,  prompt,               full, and unmistakable in their utterances****               The  press,  and  particularly  the  newspaper               press,  stands by common consent  first  among               the organs of opinion* * * The conscience  and               common  sense  of the nation as a  whole  keep               down  the  evils  which have  crept  into  the               working  of the Constitution, and may in  time               extinguish them.  That which, carrying a  once               famous  phrase,  we  may call  the  genius  of               universal  publicity,  has  some  disagreeable               results,  but the wholesome ones  are  greater               and  more numerous.   Selfishness,  injustice,               cruelty,  tricks and jobs of all  sorts,  shun               the  light; to expose them is to defeat  them.               No serious evils, no rankling sort in the body               politic, can remain long concealed, and,  when               disclosed,  it is half destroyed.  So long  as               the  opinion  of a nation is sound,  the  main               lines of its policy cannot go far wrong". John Stuart Mill, in his essay on "Liberty", pointed out the

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need for allowing even erroneous opinions to be expressed on the  ground  that  the  correct  ones  become  more   firmly established by what may be called the ’dialectical’  process of a struggle with wrong ones which exposes errors.  Milton, in his "Areopagitica" 1 644) said:               "Though  all  the winds of doctrine  were  let               loose  to play upon the earth, so Truth be  in               the field, we do injuriously by licensing  and               prohibiting to misdoubt her               829               strength.   Let  her  and  Falsehood  grapple;               whoever knew Truth put to the worse, in a free               and  open  encounter ? ..... I Who  knows  not               that  Truth is strong, next to  the  Almighty;               she  needs  no  policies,  no  stratagems,  no               licensings  to make her victorious; those  are               the  shifts  and  defenses  that  error  makes               against her power........ Political  philosophers and historians have taught  us  that intellectual advances made by our civilisation would  have been  impossible without freedom of speech  and  expression. At any rate, political democracy is based on the  assumption that  such  freedom  must be  jealously  guarded.   Voltaire expressed  a democrat’s faith when he told an  adversary  in argument  : "I do not agree with a word you say, but I  will defend  to  the death your right to say it".   Champions  of human freedom of thought and expression throughout the ages, have  realised  that intellectual paralysis  creeps  over  a Society which denies, in however subtle a form, due  freedom of thought and expression to its members. Although, our Constitution does not contain a separate guar- antee  of  Freedom of the Press, apart from the  freedom  of expression  and opinion contained in Article. 19(1)  (a)  of the Constitution, yet. it is well recognised that the  Press provides the principal vehicle of expression of their  views to  citizens.  It has been said : "Freedom of the  Press  is the  Ark  of  the  Covenant  of  Democracy  because   public criticism is essential to the working, of its  institutions. Never has criticism been more necessary than today, when the weapons  of  propaganda are so strong and so  Subtle.   But, like other liberties, this also must be limited." The   exent  of  permissible  limitations  on   freedom   of expression  is  also  indicated by  our  Constitution  which contains  the fundamental law of the land.  To that law  all Governmental  policies,  rules and regulations,  orders  and directions,  must conform so that there is "a Government  of laws  and  not of men" , or, in other  words,  a  Government whose policies are based on democratic principles and not on human  caprice  or  arbitrariness.   Article  19(2)  of  the Constitution.   requires  that  Governmental  action   which affects freedom of speech and expression of Indian  citizens should  be  founded on some "law" and also that  such  "law" should restrict freedom of expression and opinion reasonably only "in the interests of the sovereignty and integrity  of India,  the security of the St-ate, friendly relations  with foreign  states,  Public order, decency or morality,  or  in relation  to contempt of court, defamation or incitement  to an  offence." Although, the ambit of restrictions which  can be  imposed by "law" on freedom to carry on any  occupation, trade, or business, guaranteed by Article 19 (1) (g) of  the Constitution, is wider than that of res- 830 trictions  on freedom of speech and expression,  yet,  these restrictions  have  also to be limited to  those  which  are reasonably necessary "in the interest of the general public"

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as contemplated by Article 19(6) of the Constitution. Permissible  restrictions  on any  fundamental  right,  even where  they  are imposed by duly enacted law-  must  not  be excessive, or, in other words, they must not go beyond  what is  necessary to achieve the objects of the law under  which they  are  sought  to  be  imposed.   The  power  to  impose restrictions on fundamental rights is essentially a power to "regulate"   the  exercise  of  these  rights.    In   fact, "regulation"  and  not  extinction of that which  is  to  be regulated  is  generally speaking the extent to  which  per- missible restrictions may go in order to satisfy the test of reasonableness.   The  term  "regulate"  has  come  up   for interpretation  on several occasions before American  Courts which have held that the word "regulate" means "to adjust by rule,  method,  or established mode; to direct  by  rule  or restriction;  to subject to governing principles  or  laws". (See : Words and Phrases, VoL 36, p. 687 by West  Publishing Co.). I do not see any reason to give a different meaning to the term "regulation" when we use it. In the cases before us, I confess that it is very  difficult to  make out the real object of the restrictions imposed  by the  impugned  items of Newsprint  Policy.   The  Additional Solicitor  General  did  not contend  that  these  items  of newsprint import policy were not meant to have the force  of rules for conducting business or regulating actions  binding upon  the  petitioners or of "law".  He  sought  to  justify them,  in  so  far  as they affect  freedom  of  speech  and expression,  as  either  necessary incidents  of  import  of essential   commodities  and  the  allocation   of   foreign exchange, which is limited, between them, or, as a method of ensuring  a  more  widely spread freedom  of  expression  by striking  at  monopolisation of opinion by  large  newspaper concerns.  I am unable to see how these restrictions,  after quotas have, been allotted on the basis of past  performance and respective needs of each newspaper concern, could  fall within  the  objects  of  any import  policy  found  in  any statutory provision or order.  And, so far as any attempt to control .any monopolistic tendencies in the newspaper  world is concerned, no material was placed before us to enable  us to  see  how  the impugned conditions  of  import  licences, sought  to be imposed by the entries in the remarks  columns of the notified Import Trade Control Policy, are related  to any law directed against monopolisation.  The impugned items in  the declaration of newsprint policy, which are meant  to bind  those  who  had  obtained  import_licences,  were  not imposed under any law made to check monopolies.  It was also not   possible  for  me  to  see  the  relevance  of   these restrictions 831 to  any of the objects of either the  Essential  Commodities Act,  1955 or orders passed thereunder or to the Import  and Export  (Control) Act of 1947 or to orders made  thereunder. The  objects  and  ambits of the  two  enactments  mentioned above,  which were relied upon. on behalf of the Union,  are fairly clear and well defined. No  doubt  clause 3 of the Newsprint  Control  Order,  1962, issued  in exercise of powers conferred by Section 3 of  the Essential   Commodities   Act   1955   lays   down   certain restrictions  "on  acquisition,  sale  and  consumption   of newsprint".  The clause runs as follows :-               "(1)  No person other than an  importer  shall               acquire   newsprint   except  under   and   in               accordance with the terms and conditions of an               authorisation  issued by the Controller  under               this Order. ,

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             (2)   No dealer in newsprint shall sell to any               person newsprint of any description or in  any               quantity  unless  the sale to that  person  of               newsprint  of  that  description  or  in   the               quantity is authorised by the Controller.               (3)   No   consumer  of  newsprint,   in   any               licensing period, consume or use newsprint  in               excess  of  the  quantity  authorised  by  the               Controller from time to time.               (3A)  No consumer of newsprint, other  than  a               publisher  of text books or books  of  general               interest,  shall use any kind of  paper  other               than newsprint except with the permission,  in               writing, of the Controller.               (4)   An authorisation under this clause shall               be in               writing    in the form set out in Schedule II.               (5)   In  issuing an authorisation under  this               clause,               the  Controller  shall  have  regard  to   the               principles  laid  down in the  Import  Control               Policy with respect of newsprint announced  by               the Central Government from time to time". Section  3(1)  of the Essential Commodities Act,  1955  lays down the condition for and objects of issue of orders  under it in the following terms :-               "3(1) If the Central Government is of  opinion               that it is necessary or expedient so to do for               maintaining  or  increasing  supplies  of  any               essential  commodity  or  for  securing  their               equitable  distribution  and  availability  at               fair  prices,  or for securing  any  essential               commodity  for  the defence of  India  or  the               efficient conduct of military               832               operations  it  may,  by  order,  provide  for               regulating  or  prohibiting  the   production,               supply and distribution thereof and trade  and               commerce therein". Section  3(2)  lays  down that  "without  prejudice  to  the generality .of the powers conferred by sub s. (1), an  order made   thereunder  may  provide"  inter  alia  :  (a)   "for regulating by licences, permits or otherwise the, production or  manufacture  of any essential commodity;" and  (b)  "for regulating  by licences, permits or otherwise  the  storage, transport,  distribution,  disposal,  acquisition,  use   or consumption of any essential commodity". Orders  issued under Section 3 of the Essential  Commodities Act 1955 must bear a reasonable relationship to the purposes for  which  such orders can be made.  Clause 3  (5)  of  the Newsprint Control Order, 1962, presupposes the existence  of some  principles ,of "Import Control Policy" without  either stating them or indicating how they are to be related to the objects  of Section 3. Obviously, they cannot go beyond  the Act.  If the impugned terms and conditions could be  covered by  the vague clause 3(5) ,of the News Print Control  Order, 1962,  1  venture to think that this provision of  the  News Print  Control  Order 1962 may itself have  to  be  declared invalid by us.  I may also mention that there seems to be  a serious flaw here inasmuch as no machinery for fair and just administrative decisions, so as to correlate conditions  im- posed  upon  competing  claimants for quotas  of  a  limited amount of news print to their needs and to the  requirements of   a   law  which  is  meant  to  ensure   an   "equitable distribution",  is  provided here.  However, as  it  is  not

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necessary,  for  the  purposes  of  giving  relief  to   the petitioners, to pronounce on the validity of clause 3 (5) of the  Newsprint  Control Order, 1962, I will,  in  conformity with the opinion expressed by my learned brother Ray on this aspect,  refrain from deciding the question of the  validity of its provisions in the cases before us. Section  3(1) of the Imports & Exports (Control) Act,  1947, restricts  the  power of the Central Government,  "by  order published  in the official Gazette", to  making  "provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to  such exceptions if any as may be made by or under the order :-               (a)   the import, export, carriage  coast-wise               or  shipment in ships stores of goods  of  any               specified description;               (b)   the  bringing into any port or place  in               India  of goods of any  specified  description               intended  to  be taken out  of  India  without               being  removed from the ship or conveyance  in               which they are being carried".               833 Clause  3  of  the Imports (Control) Order,  1955,  made  in exercise  of  powers conferred by Sections 3 and 4A  of  the Imports & Exports (Control) Act, 1947, says : .lm15 "3.  Restriction of Import of certain goods:-- (1)  Save  as  otherwise provided in this order,  no  person shall  import  any  goods of the  description  specified  in Schedule 1, except under, and in accordance, with a  licence or  a  customs  clearance  permit  granted  by  the  Central Government or by any officer specified in Schedule 11". It seems to me that the ambit of the conditions in a licence cannot,  under  the provisions of the  Imports  and  Exports Control  Act,  after  newsprint has been  imported  under  a licence, extend to laying down how it is to be utilised by a newspaper  concern for its own genuine needs and  businesses because  this would amount to control of supply of  news  by means of newsprint instead of only regulating its import. The  enactments  and orders mentioned above seem  to  me  to authorise  Only the grant of licences for particular  quotas to those who run newspapers on the strength of their  needs, assessed on the basis of their past performances and  future requirements and other relevant data, but not to warrant  an imposition  of  further conditions to be  observed  by  them while  they are genuinely using the newsprint themselves  in the  course  of  carrying on a  legitimate  and  permissible occupation   and   business.    The   impugned   restrictive conditions thus appear to me to go beyond the scope of the Essential  Commodities Act, 1955, as well as of the  Imports and Exports (Control) Act, 1947. References   were  also  made  by  the  learned   Additional Solicitor  General  to  the  provisions  of  the  Press  and Regulation  Books  Act,  1867,  Registration  of  Newspapers (Central  Rules),  1956, and Press Council  Act,  1965,  as parts  of  a  possibly  desperate  attempt  to  justify  the impugned items of newsprint control policy and to show  that they are covered by some provision of law.  I am unable  to- find the legal authority anywhere here also for these  items of Newsprint Control Policy. I think, for the reasons given above, that the argument  put forward  oil  behalf  of the  petitioners  that,  after  the allocation   of   quotas  of  newsprint  to  each   set   of petitioners,  on  legally  relevant  material,  the  further restrictions sought to be imposed, by means of the  notified newsprint  control  policy, on the actual mode  of  user  of

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newsprint  for  publication of information or views  by  the licensees,  similar to those which were held by this  Court, in Sakal 834 Papers  (P.) Ltd. & Ors.  Vs.  The Union of India(1), to  be invalid, are not covered by any law in existence, has to  be accepted.   Hence,  it  is  not even  necessary  for  us  to consider whether they are reasonable restrictions  warranted by   either   Article  19(2)  or  Article   19(6)   of   the Constitution.   They must first have the authority  of  some law  to  support  them before the  question  of  considering whether they could be reasonable restrictions on fundamental rights of the petitioners could arise. 1,  therefore, concur with the conclusions reached  and  the orders proposed by my learned brother Ray. G.C. (1) [1962] 3 S.C.R. 842. 499 Sup. CI/73--25,00--15-4-74--GIPF. 835