# BENNETT COLEMAN & CO. & ORS v. UNION OF INDIA & ORS

- **Citation:** [1973] 2 S.C.R. 757
- **Court:** Supreme Court of India
- **Decided:** 1972-10-30
- **Case number:** Writ Petitions Nos. 334 of 1971
- **Bench:** S. M. S!Kri, A. N. Ray, P. Jaganmohan Reddy, K. K. B Mathew, M. H. Beg
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bennett-coleman-co-ors-v-union-of-india-ors-5898
- **Pages:** 78

## Headnote

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Co11.1titutio11 of India 1950, Arts. 14 & 19 (l)(a)-Newspri11t policy
for 1972-73 whether violates Articles 19(1)(a) and 14 -Validity of Re-
"""*' V, Vll(a), Vll(c), V//J «nd X of Policy-Competency of shareholders of company to file petitions under Art.32-Emergency proclaimed
11nder Art. 358 of Cons1it11tio11-App/icatio11 in respect of enforcement of
fundamental rights whether barred.
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 in1port Of newsprint. As 3.n 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 sh..tl 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 of general interest shall use
any kind cif 'paper other than newsprint except with the penilission in
Writing of the Controller.
Sub-clause ( 5) of Clause 3 of the 1962 Order
st&es 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 chi:.llengc 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) whetber 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 <if the 1962 Newsprint Order were violative of Arts. 19(1 )(a)
and 14 of the Constitution; (vi) whether Remarks V, VIl(a), VIl(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 p::.per or new edition could be started by a
common ownership unit (i.e., a newspaper establishment or concern owning tw'? '?r more new~ interest newspapers including at least one daily)
even w1thm. the authorised quota cif newsprint; (b) there was a limitation
on the ma_x1mun_i number of pages to 10, no adjustment being permitted
~etween circ~l~t10n and the. pages so as to increase the pages; (c) no
mtercha~geab1hty was permitted between different papers of common
ownership unit or di!ferent editions of the same paper; ( d) allowance of
20 per cent mcre.ase m page level up to a maximum of 10 had· been given
'<? newspapers with less than 10 pages; (e) a big newspaper was prohib1~ ~.d prevented from .increa~ing the number of pages, page area, and
penod1c!t>: by reducmg circulat1on to meet its requirement even within
its adm1sS1ble quota; (f) there was discrimination in entitlement between
758
SUPREME COURT REPORTS
[1973] 2 S.C.R.
newspapers with an avera.ge of more than 10 pages as compared with
newspapers of 10 or Jess than 10 pages.
Allowing the petitions,
HELD : Per Majority (Sikri, C.J., Ray and Jaga.runohan Reddy, JJ.)
(1) The Bank Nationalisation case has· established the view that the fun·
damental rights of shareholders as citizens are not Jost 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
reooon is that the shareholders' rights are equally and necessarily affected
if the rights of the company are affected. The rights of sharehol

## Text

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757
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BENNETT COLEMAN & CO. & ORS.
v.
UNION OF INDIA & ORS.
October 30, 1972
[S. M. S!KRI, C.J., A. N. RAY, P. JAGANMOHAN REDDY, K. K.
B
MATHEW AND M. H. BEG, JJ.]
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Co11.1titutio11 of India 1950, Arts. 14 & 19 (l)(a)-Newspri11t policy
for 1972-73 whether violates Articles 19(1)(a) and 14 -Validity of Re-
"""*' V, Vll(a), Vll(c), V//J «nd X of Policy-Competency of shareholders of company to file petitions under Art.32-Emergency proclaimed
11nder Art. 358 of Cons1it11tio11-App/icatio11 in respect of enforcement of
fundamental rights whether barred.
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 in1port Of newsprint. As 3.n 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 sh..tl 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 of general interest shall use
any kind cif 'paper other than newsprint except with the penilission in
Writing of the Controller.
Sub-clause ( 5) of Clause 3 of the 1962 Order
st&es 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 chi:.llengc 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) whetber 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 <if the 1962 Newsprint Order were violative of Arts. 19(1 )(a)
and 14 of the Constitution; (vi) whether Remarks V, VIl(a), VIl(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 p::.per or new edition could be started by a
common ownership unit (i.e., a newspaper establishment or concern owning tw'? '?r more new~ interest newspapers including at least one daily)
even w1thm. the authorised quota cif newsprint; (b) there was a limitation
on the ma_x1mun_i number of pages to 10, no adjustment being permitted
~etween circ~l~t10n and the. pages so as to increase the pages; (c) no
mtercha~geab1hty was permitted between different papers of common
ownership unit or di!ferent editions of the same paper; ( d) allowance of
20 per cent mcre.ase m page level up to a maximum of 10 had· been given
'<? newspapers with less than 10 pages; (e) a big newspaper was prohib1~ ~.d prevented from .increa~ing the number of pages, page area, and
penod1c!t>: by reducmg circulat1on to meet its requirement even within
its adm1sS1ble quota; (f) there was discrimination in entitlement between
758
SUPREME COURT REPORTS
[1973] 2 S.C.R.
newspapers with an avera.ge of more than 10 pages as compared with
newspapers of 10 or Jess than 10 pages.
Allowing the petitions,
HELD : Per Majority (Sikri, C.J., Ray and Jaga.runohan Reddy, JJ.)
(1) The Bank Nationalisation case has· established the view that the fun·
damental rights of shareholders as citizens are not Jost 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
reooon 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 maniiested by the newspapers
· owned and controlled by the shareholders through the medium of the Corporation. [773C·Dl
Jn the present case, the individual rights of freedom of speech and
expression of editors, Directors and Shaireh~lders ate all expressed through
their newspapers through which they speak.
The locus stand/ 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·FJ
(ii) The present petitions which were originally filed to challenge the
Newsprint Policy for 1971-72 were amended to challenge the 1972-73
policy.
The impeached pclicy 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 emanati'Jn of
the previous law which prior executive action or previous laiw would otherwise be violative of Art. 19 or be otherwise unconstitutional. (774 F, G, HJ
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 f undament21! 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 newsr.rint cannot be
denied .. The power of the Government to control the distribution of newsprint cannot equally be
denied. This ·eourt cannot adjudicate on such
policy measures unless the policy is alleged to. be ma/a {iae. The Court
could also not go into . the dispute a~ to tre quantity of indigenous news·
print available for newspaJ><rs. [776D; 776EJ
(iv) The records with regard to the making and publication of the
newsprint policy for 1972-73 showed that the pclicy 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 f1<0edom of the
Press, it is the settled view o'f this Court that freedom of speech and
expression includes 'freedom of the Press and circulation. 1be Prca has
the right of free propagation and free circulation without any previous
restraint on publication. 'If a Jaw were to single out the press for laying;
down prohibitive burdens .on it that would reotrict the circulation penalise
its freedom of choice. as to per~nel, prevent newspapers fr~m being
star~d and compel the press to Government aid, this would violate· Art.
J9(1)(a) and would fall outside the protection afforded by Art. 19(2).
[777B-DJ
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BENNETT COLEMAN & CO. v. UNION
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The concept of regulation of fundamental rights borrowed and extracted
from American decisio~s 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 expre~s. That
freedom cannot be abridged and taken away by the manner the ;mpugned
policy has done. [783B; 784C]
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(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 circuli:.tion 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 Polley
is found to be newspaper control order in the guise of framing an Import
Control Policy for newsprint. [780H; 78 IA-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 im11airing the right
of the citizen nor the form of action that determines the mvasion 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. [7810-DJ
An examination of the provisions of the newsprint policy indicates how
the petitioner's fundamental rights had been infringed by 1tM restrictio•1S
on page limit, prohibition against new newspapers and new editions. The
effect and consequence of the impugned pohcy upon the newspapers is
directly controlling the growth and circulation of newspapers. The direct
effect IS the restriction upon circulation of newspapers.· The direct effeCl
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. [7828-C]
(viii) It is indisputable that by freedom of the press is meant the right
of all citizens to speak, ~ublish 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.
[7820]
(ix) In the present case fixation of page limlt will not only deprive
the petitioners al 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 a;nrl
views. [7900-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 df their
freed<>m of speech and expression.
On the other hand if as .. 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 .th• circulation and thereby infringe on freedom of
speech and expression. [790F-GJ
. (x) The impeached policy .violates Art. 14 because it treats newspapers
which are not equal equally m assessing the needs and requirements of
newsprint.
The ~ newspapers which were operoting above 10 page level
are placed at a d1S.dvantage by the fixation of I 0 page limit and .entitle"
ment
to . quota on that basis..
There ;s no intelligible differentia.
[791H; 797.A-B]
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SUPREME COURT REFORTS
[1973] 2 S.C.R.
The basic entitlement in Remark V to quota for newspapers operating
above 10 page level violates Article 19(1) (ai) because the quota is hedged
in by direction not increase the page number above 10. The reduction of
page limit to IO for the aforesaid reasons vio'atc~ Article 19(1) (a) and
Article 14 of the Const:tution. [792C]
(xi) Under Remark VJI(c) those newspapers within the ceiling of 10
pages get 20 per cent increase in the number o'f pr~cs. They require
circulation rrtore 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 quot::. for increase but they are denied the
right of circulation.
This is not nc\~lsprint: control but newspaper control.
[792F-G]
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(xii) Discrin1ination 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 l 0% increase in circulation whereas those with more than
1,00,000 circulation have been given only 3%
increase in circulation.
[795C-D]
(xiii) The first part of Remark Vl!I prohibits increase in pages by
reducing circulation.
In the past adjustability between pages and circulation was permitted.
The .individual re,quirements of different dailies
render it eminently desirable in some cases to increase the number of
peiges than circulation. The denial of this fiexibility 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 arc not equal to them thus viola.ting Art. 14.
(793&F]
(xiv) The second
prohibition in Remark VIII prevented common
ownership units from adjusting between them the newsprint quota alloted
IO> 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 newspaper is considered to be the recipient. A single newspaper will suffer
if common ownership units arc allowed to adjust quota within their
group. r194 B; & DJ
(xv) Under Remark X a common ownenhip. 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 z, 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
2t 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 applicatioo for a'lotment of
quota in that behalf. It will be open to the appropriate authorities to deal
with the application in accordance with law. [7940-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 pa.ge limit an<l allowing them to have new editions of
newspapers. [796A-C]
(xvii) The Press is not exposed to any mischief elf monopolistic combination. The
newsprint policy is not a n1easurc to comhat
monopolies.
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BENNETT COLEMAN &. CO. V. UNION
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The newsprint policy should allow the newspapers th3ct amount of free-·
dom 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.
;mt! matters needed for free society. [7970-E]
(xix) Clause 3(3A) of the 1962 ·order provides th"'t no consumer of
newsprint other than a publisher of tex_t books of general inter.est shall
use any kind of page other than newsprmt except with the perm1ss1on 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 newspapers did not apply for newsprint. [798F]
(xx) Jn the result the prov:sions in remarks V, VU(a), VII(c) and
VIII of the j'olicy being violative of Arts. 14 & 19 (l)(a) of the Constitution must be struck down as unconst;tutional. The prohibition in Re~
mark X against common ownership unit from st~rting a new newspaper
periodical or a new edition must be declared unconstitutional and struck
down as violative of Art. 19 (1) (a) of the Constitution. [799B-D]
fin the circumstances of the case the Court did not find it necessary
to express any opinioin on Clause 3(3) and: Clause 3(3A) of the Control
Order]
·
State Trading Corporation of India Ltd. v. The Con1niCrcial Tax Officer,
Vi.mklwpat!Ulm, [1964] 4 S.C.R. 99, Tata Engineering & Locomotive Co.
v. State of Bihar, [1964] 6 S.C.R .. 885, Chiranjit Lal Chaudhuri 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, Sakal Papers
(P) Ltd. & Ors. v. The Union of India, [1962] 3 S.C.R. 842, Ramesh
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.
330, District Collector of Hyderabad & Ors. v. MI 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. Un'ion 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
Azia Aminudin v. 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 Citi£en Publishing Co. v. United States, [1969] 394 U.S. 131=22
l. Ed. 2 d. 148, referred: to.
Pq 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 hcence, extend to laying down how it is to•
be μtilized by a newspaper concern for il<j own genuine needs and businesses.
because this would :>mount to control of supply of news by means of
n1>wsprint 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 th~e who run newspapers on the strength
of t~elf needs, assessed on the basis of their past performqnces and future
reqwrements. ~nd other relevant data, but not to warrant an imposition ef
further con_d11tons to be ot;>served by them while ~ey are genuinely using
the ~eo,ysprmt the~selves m the course of carrying on a legitimate ans
penniss1ble occupat10n and business. The impugned restrictive conditions
thus £4>pear 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
SUPREME COt'RT REPORTS
[1973] 2 s.c.R.
.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. [8330-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 farther restrictions sought to be imposed,
by means of the notified newsprint control p<>licy, on the :.::tual mode of
user of newsprint for publication of irrformation or views by the licensees,
similar to those 'which were held by this Court in Sakal Papers case to' be
invalid, are not coveted by any Jaw in existence, had t·o be accepted.
Hence it was not even necessary to consider whether they were reasonr..ble
restricti®S warranted by either Art. 19(2) or Art. 19(6) of the Constitu·
tion.
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 petitioner could arise. [833H-834B]
Per Mathew J. (dissenting) (i) 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 reguleoted or that every regulation
·Of speech would be an abridgment 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 Cot•rt said in Jn Re the Kera/a Education Bill 1957, ([1959) S.C.R. 995), th:it the right is subject to reMonable regulation. [803F-O]
(ii) If, on account of scarc;ty 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 cif 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 tb.e process of deciding whether the provisions in question which work some interference with the freedom cir
speech are essentially regulatory in character. [807C-DJ
(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 mitiga.te 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 fclr the distribution of newsprint is not for the common good. [816C-FJ
That apart one of the objects o'f the Newsprint policy was to remedy
the inequality created by the previous policies and to en~ble the dailies.
having less than JO pages attain a position of equality witli those operat•
ing on a page level of I 0 or more:
The
allowance of 20 per cent
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BENNETT COLEMAN & CO. V. UNION
763'
A
increase for growth in the pa.ge l~vel provided in Remark VII. is base.d l)n
a classification and that classification 1s grounded on an mtell1g1ble d1ffercntia having a nexus to the object sought to be achieved. [816G]
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(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 mtegral
pan of any system of ra.tioning to tell the consumer that h~ sh?uld mamtain the page level wnd circulation of the paper. The prov1S1on m Remark
Vlll does not say that the proprietor or publisher of a newsi)aper 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
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 spec.k but also the right of the community 1o hear, a policy for the distribution of nc\vsprint for maintenanci.!
of circulation at its highest possible level as it furthers the right of the
communiry to hear, will only advance and enrich that freedom. [8190)
(vii) It is difficult to understand how the fixation of a maximum page
level of 10 'for colculation of quota o·f newsprint would offend the funda·
mental right o[ freedom of sp<cch of the petitioners.
The freedom of
speech does not mean a right to ohtain or use an unlimili.!<l quantity of
newspnnt. Art. 19(1) (a) is not the "guardian of unlimited talbtivene"."
1814F·GJ
(viii) It is settled by the decision of this Court in lfa11ulard Dawakliana
([1960] 2 S.C.R. 671) that commercial advertisement doc' not come
within the ambit of the freedom of speech guaranteed hy Art. 19(l)(a).
Curtailment of speech occasioned hy rationing of ne\\'sprint due to its
scarcity can only affect 'frccdon1 of speech indirl.'.'ctly and consequently
there would be no ahridgm,ent of it. [8158-C]
(ix) The Government may under els. 3 of the Import.' (control) Order.
1955 totally prohibit the import of newsprint and thus dis~hlc any perwn
from carrying on a business in newsprint, if it is in the general interc.•t
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 educMe 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 intcre...;;t in
maint21ining 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 sub·
article. [820B-E]
(x) !he I;'ri~ter or publisher of each newspaper owned by a common
ownership unit IS a sepccate consumer and it is to that consumer that the
qu_ota is. allotte~. The application for quota made by the common ownership u~1t specifies the entitlement of each newspaper owned by it, and
quota IS granted !o ea~h newspaper on that basis. re it were opened to a
co~mon ownership unit to use the quota allotted for one newspaper owned
by 1t for another newspaper, or for a different edition of the same ~ •wspa~r, that wou!~ frustrate t~e whole scheme of rntioning.
Prohibition
of mterchangeab1hty has nothing to do with Art. 19(I)(a). [B22C-D]
7s4
SUPREME COURT REPORTS
[ 1973] 2 S.C.R.
"(xi) That there is a valid classification between a person owning no
newspaper and a common ownership unit owning two or more newspa~rs
.cannot be denied. Any person desiring to express kimself 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 ,,spec!. A,
.common ownership unit has already been given the opportunity to expres.s
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
cl~'m for quota for all the newspapers is admitted, that would result in
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. Tite newsprint Policy
was issued by the Chief Controller of Imports & Exports and the Additional
Secretary to Government, had auth~nticated it.
The newsprint Policy was
placed before both the Houses of Parlia.ment. Even if it was administrative in character it was capable of founding rights and duties. [823F; 824BI
(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 2{;sumed that Government or the
Chief Controller of Imports and .Exports has no power under cl. 5(1){iJ
of the Imports (Control) Ordet 1955 to issue directions as regards the
mode of utilization of nc\vsprint 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" u.11dcr s. :!(vii}' Of
that Act. [824F; 825C-DJ
(xiv) Clauses 3(3) and 3(3A) of that newsprint order were not violative of Art. 14 of the Const•tution. [826F]
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(xv) It was not necessary to express any opinion as regards the m.aintainability of the writ petitions on the ground that consumers of news.print
in qu<Stion were not citizens. [826G]
F
ORIGINAL JURISDICTION :
Writ Petitions Nos. 334 of 1971,
175, 186 aind 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. 0. Chenai, S. Swarup,
G
Ravinder Narain, O. C. Mathur and J. B. Dadachanii for the petitioners (in W.P. No. 334 of 1971.)
'
C. K. Dap/ztary, M. C. Bhandare, Lie/a Seth, 0. P. Khaitan
and N. C. Shaf., for the Petitioner On W.P. No. 175 of 1972).
S. !. Sorabjee, Ramanathan,
J. B. Dadachanji, Ravinder
H
Narain and 0. C. Mathur, for the Petitioners (in W.P. No. 186 of
1972).
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BENNETT COLEMAN "' co. v. UNION (Ra,v, J.)
765
M. K. Nambyar, K. K. Venugopal, J.B. Dadachanji, Ravinder
Narain and O. C. Mathur, for the peti'tiooers (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, 0. C. Mathur and Ravinder Narain, for the
Interveners Nos. 1 and 2.
0. P. Khaitan, for Intervener No. 3.
The majority judgment of Sikri, C.J. and Ray and Jagamnohan
Reddy, JJ. was delivered by Ray, J. Beg, J. delivered a separate
concarring opinion. Mathew, J. delivered a separate dissenting
opinion.
RAY, J. These petitions challenge the Import Policy for
Newsprinc for the year April 1972 to March 1973. The Newsprint Pnlicy is impeached as an infringement of fundamental rights
to freedom of speech and expression in Article 19 (I ) (a) and right
to equality in Article I 4 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, 194 7 (referred to as the 194 7 Act). Section 3 of the 194 7 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 703 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 ti1e
restriction of imoort 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 3 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
. SUPREME COURT REPORTS
(1973] 2 S.C.R.
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".
Papt>r 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 newsprin~. ·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 writ -
ing, of the Controller. Sub-clause 5 of clause 3 of the J 962 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 in.fringe Article 19 (I) (a) of the Constitution. The restriction:; mentioned in these sub-clauses of clause 3 of the 1962
Newsryrint 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 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 arc said to be not rea•onable 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 newsprin~ 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 othe_r 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.
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BENNETT COLEMAN & CO. v. UNION (Ra;y, J.)
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 t,he 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 inFluding 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 al speech and expression guaranteed in Article
19 (I) (a) of the Constitution. First, no new paper or new edition
can be started by a common ownership unit even within the autho·
rised 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 di\Tercnt
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 I 0 has been given to newspaper~ 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 197i-72 and the earlier p~riods 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 !rrational, ~rbitrary and unreasonable. Big daily newspapers
havmg large cuculation contend tha~ this discrimination is bound
to have :1dwrse effects· on the big daily newspapers.
Th7 Newsprint Policy is said to be discriminatory and violative
o'. Article 14 bec.ause common ownership units alone arc
proh1b1t~d fr?m startmg a new paper or a new edition of the same
paper wlule other .n~'_\'spaper.s wi.th only one daily are permitted
to do so. The proh1b1tion ag~mst mter-changeability between different papers. of the same. umt and different editions of the said
paper is said to ~e ar?llrary and irrational, because it treats all
c?mm?n ownership umts as equal and ignores pertinent and matenal differences between some common ownershio units as compare~ to others. The 10 page limit imposed by the policy is sa'd
to vwlate Article. 14 because it equates newspapers which. · a~e
unequal a~d provides t~e same pe~missible page limit for newspapers which are essentially local m their character and
I · h
h I
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newspapers w 11c reac
arger sections of people b· giving world news
14-L499Sup.Clj73
" •
768
SUPREME COURT REPORTS
[J 973] 2 S.C.R.
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 discrimiJ!ating against
newspapers having more than 10 pages. The difference in entitlement between newspapers with an average of more than 10 pages
as ccn1pared with newspapers of 10 or less than 10 pages is said
to be discrirninatory because the differentia is not based on raiional
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 basi~ 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
hulk 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 1his was adversely affecting the requirements of the
publishe~s of text books. The loss to newsprint consumer from
the non-availability of white printing paper was made good in
addilional quantity of imported newsprint. The import quota of
ne1\sprint was increased from 1,40,000 tonnes in
1970-71
to
L80,\JOO tonnes in 1971-72.
From l 972-73 with regard to daily newspapers three principal
changes were effected. First, the base year for
circulation was
!aken 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 I 0 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. fo 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 I 0 pages was
permitted ..
The Add.1lion~1l Solicitor General raised two pleas in demurrer ..
First, it was said that the petitioners were companies and therefore, they could not invoke fundamental rights.