# l!! SUPREME <'Ol'RT REPOHTS [ l!l59] J<~XPRESi:l NEWSPAPERH (PR I VA.TE) LTIJ., AND ANOTHEH v. THE U:N"IOX OF INDIA AND OTHEH~

- **Citation:** [1959] 1 S.C.R. 12
- **Court:** Supreme Court of India
- **Decided:** 1959
- **Bench:** Hhaowati, B. P. Sinha, JAFF.H blAM, J. L. KAPU\t, <iAJENDHAGAUKAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-supreme-ol-rt-repohts-l-l59-j-xpresi-l-newspaperh-pr-i-va-te-ltij-and-anotheh-1535
- **Pages:** 183

## Headnote

Working .foumalists-Rcgulaliou of Co11dilio11.1 of ServiceConslitulional 1•atidit_y of rnadnicnt---Drci>1011 of l!'agr Board Ji.tin~
rates of wages- Validit_y-11" urking J 01m1a/1sts (Condit ion.< of Seri•ice)
and Miscdlaneous Provisio11s Art, 1955 (45 of i955). ss. 3(2), ./, 5(1)
(a)(iii), 9(1). II, 12, I], 2o(d)(2)-Conslitution of India, .1rt<. r9(1)
(a), r9(1)(g), 14, J2.
These petitions on behalf of certain newspaper establishments
challenged the constitutional validity of the Working .Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955,
and the legality of the decision of the \\'age Boarrl, constituted
thereunder, purporting to act under s. 9 of the Act. The impugned
Act, which was passed in order to implement the rccomm<"nclations
of the Press Commission and hacl for its object !11<' n·gulation of
the conditions of service of working journalists and other persons
employed in newspaper establishments, provided, inter aha, for
the payment of gratuity to a working journalist who had been
in continuous scr\'ice, whether before or after the commencement
of the Act, for not less than three years, even when he voluntarily
resigned from service, regulated hours of work and leave, provided
for the payment of retrenchment compensation with retrospective
effect in certain cases and bys. 9(1) laid dow11 the principles that
the Wage Board was to follow in fixing the rates of wages of
working journalists.
Under those principles the Wage Board was
to have re~ard to the cost of Jiving, the pre,·alent rates of wages
for comparable employments, the cirrnmstances relating to the
newspaper industry in different regions of the country and to any
other circumstances which it might consirkr rel<"vant.
The petitioners
contended on various grounds that
the prO\'i!-iions
of the impugned Act violated their fundamental riglits under
.\rts. 19(1)(a), 19(1)(g), 14 and 32 of the Constitution and that the
decision of the \\'age Board fixing the rates and scales of wages,
which was arrived at \\'ithout 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 spelled its total
ruin, was vitiated by a wrong approach ,and non-application of
the proper criteria and t(ansgrcssed the principles of natural
justice and was, therefore, Illegal an<l void :
Held, that the constitutional validity of the impugned Act,
with the sole exception of s. :;(1)(a)(iii) of the Act winch infringed
S.t'.R.
fl_;"~EME COURT REPORTS
Art. r9(1)(g) of the Constitution, was beyond question and as that
section, severable as it was from the rest of the Act, must alone
be declared ultra vires.
Section 9(1) of the Act, properly construed, made it incum·
bent on the Wage Board to take into consideration the capacity
Express News·
papers {Private)
Ltd, & Another
of the newspaper industry to pay the rates and scales' of wages
, . v.
.
recommended by it and as there was nothing to indicate that it Tloe c "'°" •!India
,had done so, its decision was void and inoperative.
.s. Gt/sers
Held, further, that there could be no doubt, in view of the
interpretation put upon Art. l9(1)(a) of the Constitution by this
Court, that liberty of the press was an essential part of the freedom of speech and expression guaranteed by that Article and the
press had thereunder the right of free propagation and free circulation without any previous restraint on publication.
Ramesh Thaper v. The Slate of Madras, [1950] S.C.R. 594 and
Brij Bhushan v. The State of Dtlhi, [1950] S.C.R. 605, referred to.
It was legitimate and proper to refer in this connection to
the decisions of the Supreme Court of the United States of
America, since Art. l9(1)(a) of the Constitution was based on
Amendment l of the Constitution of that country, and the rules
that could be deduced therefrom made it c!P.ar that although freedom of the press included freedom from restriction in resprct of
employment in the editorial staff, th

## Text

_Characters 0–39,959 of 411,997. This is a partial read: ask again with offset=39959 for what follows._

l!!
SUPREME <'Ol'RT REPOHTS
[ l!l59]
J<~XPRESi:l NEWSPAPERH (PR I VA.TE) LTIJ.,
AND ANOTHEH
v.
THE U:N"IOX OF INDIA AND OTHEH~
(and connected petitions and appeals)
(HHAOWATI, B. P. SINHA, JAFF.H blAM, ,J. L. KAPU\t
and <iAJENDHAGAUKAH, .J.J .)
Working .foumalists-Rcgulaliou of Co11dilio11.1 of ServiceConslitulional 1•atidit_y of rnadnicnt---Drci>1011 of l!'agr Board Ji.tin~
rates of wages- Validit_y-11" urking J 01m1a/1sts (Condit ion.< of Seri•ice)
and Miscdlaneous Provisio11s Art, 1955 (45 of i955). ss. 3(2), ./, 5(1)
(a)(iii), 9(1). II, 12, I], 2o(d)(2)-Conslitution of India, .1rt<. r9(1)
(a), r9(1)(g), 14, J2.
These petitions on behalf of certain newspaper establishments
challenged the constitutional validity of the Working .Journalists
(Conditions of Service) and Miscellaneous Provisions Act, 1955,
and the legality of the decision of the \\'age Boarrl, constituted
thereunder, purporting to act under s. 9 of the Act. The impugned
Act, which was passed in order to implement the rccomm<"nclations
of the Press Commission and hacl for its object !11<' n·gulation of
the conditions of service of working journalists and other persons
employed in newspaper establishments, provided, inter aha, for
the payment of gratuity to a working journalist who had been
in continuous scr\'ice, whether before or after the commencement
of the Act, for not less than three years, even when he voluntarily
resigned from service, regulated hours of work and leave, provided
for the payment of retrenchment compensation with retrospective
effect in certain cases and bys. 9(1) laid dow11 the principles that
the Wage Board was to follow in fixing the rates of wages of
working journalists.
Under those principles the Wage Board was
to have re~ard to the cost of Jiving, the pre,·alent rates of wages
for comparable employments, the cirrnmstances relating to the
newspaper industry in different regions of the country and to any
other circumstances which it might consirkr rel<"vant.
The petitioners
contended on various grounds that
the prO\'i!-iions
of the impugned Act violated their fundamental riglits under
.\rts. 19(1)(a), 19(1)(g), 14 and 32 of the Constitution and that the
decision of the \\'age Board fixing the rates and scales of wages,
which was arrived at \\'ithout 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 spelled its total
ruin, was vitiated by a wrong approach ,and non-application of
the proper criteria and t(ansgrcssed the principles of natural
justice and was, therefore, Illegal an<l void :
Held, that the constitutional validity of the impugned Act,
with the sole exception of s. :;(1)(a)(iii) of the Act winch infringed
S.t'.R.
fl_;"~EME COURT REPORTS
Art. r9(1)(g) of the Constitution, was beyond question and as that
section, severable as it was from the rest of the Act, must alone
be declared ultra vires.
Section 9(1) of the Act, properly construed, made it incum·
bent on the Wage Board to take into consideration the capacity
Express News·
papers {Private)
Ltd, & Another
of the newspaper industry to pay the rates and scales' of wages
, . v.
.
recommended by it and as there was nothing to indicate that it Tloe c "'°" •!India
,had done so, its decision was void and inoperative.
.s. Gt/sers
Held, further, that there could be no doubt, in view of the
interpretation put upon Art. l9(1)(a) of the Constitution by this
Court, that liberty of the press was an essential part of the freedom of speech and expression guaranteed by that Article and the
press had thereunder the right of free propagation and free circulation without any previous restraint on publication.
Ramesh Thaper v. The Slate of Madras, [1950] S.C.R. 594 and
Brij Bhushan v. The State of Dtlhi, [1950] S.C.R. 605, referred to.
It was legitimate and proper to refer in this connection to
the decisions of the Supreme Court of the United States of
America, since Art. l9(1)(a) of the Constitution was based on
Amendment l of the Constitution of that country, and the rules
that could be deduced therefrom made it c!P.ar that although freedom of the press included freedom from restriction in resprct of
employment in the editorial staff, the press was not immune from
ordinary forms of taxation or from the application of general
laws relating to industrial relations or laws regulating payment
of wages.
Case law reviewed.
But if a law were to single out the press for laying 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 seek Government aid, it would
be violative of Art. .19(1)(a) and would fall outside the protection afforded by Art. 19(2) of the Constitution.
The impugned Act, judged by its provisions, was not such a
law but was a beneficent legislation intended to regulate the conditions of service of the working journalists and the consequences aforesaid could not be the 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 '\nd expression of the petitioners and did
not, therefore, infringe Art. 19(1)(a) of the Constitution.
A. K. Gopalan v. Tht Slate of Madras, [1950] S.C.R. 88, Ram
Singh v. The Stale of Delhi, [1951] S.C.R. 451, Minnesota Ex Rel.
Olson,(1930) 283 U.S. 697; 75 L. Ed. 1357 and Dwarkadas Shrinii·as
of Bombay v. The. Sholapur Spinning and Weaving Co., Ltd., [1954]
S.C.R. 674, considered,
14
SUPREME COVRT REPO~~
[1959]
1958
:\'or. could the impugned Act be held lo he violative of
Art. r9(1)(g) of the Constitution in ,·icw of the test of reasonExpress Newsableness laid down by this Court.
papers (Privulc)
.
1
•
Ltd .;;. Ano//,.
Ch11ttaman Rao v. The .'ltate of Madhya Pradesh, [1950]
··
v.
"
S.C.R. 759, The State of Madras \'. V. c;. Rao, [1952] S.C.K 597,
The Union of India Stat' of JI' est Bcnual v. Subodh Gopal Bos<, [1954] S. C.R. 587 and
6 Cllhns
Virendra v. State of Punjab, [1958] S.C.R. 308, referred to.
It was not correct to say thats. 9(1) of the Act did not lay
down the relevant criteria for the fixation of rates of wages. On
a true construction of that section it must be held that the
criterion of prevalent rates ·of wages for comparable employment
could be consistent only with the wa~es higher than the hare
subsistence or n1inimum wages and, since rates of ~·ages must be
held to include scales of wages as well, it was essential that
the Wage Board should take into consideration the capacity of
the newspaper industry to pay before it could fix the rates of
wages.
Although the Act did not specifically say so, it was possible to hold that the third criterion laid down by the section,
namely, the circumstances relating to the newspaper industry in
different regions of the country, included such a consideration.
The provisions of the section were not, therefore, unreasonable
and violative of .\rt. 19(1)(g) of the Constitution.
The provisions of s. 9(1) of the impugned Act did not vest
uncontrolled power in the Wage board. The last criterion of that
section \Vhich en1pO\\'ered the Board to take into consideration
any other circumstances that it might think relevant, must be
read ejt<sdem gencris with the other criteria that preceded it and
as they laid down with sufficient clarity and particularity the
principles for the guidance of the Board, the Legislature was perfectly justified in leaving such considerations as might arise in
course of lhe enquiry to the subjective satisfaction of the Board
constituted, os it was, of equal number of representatives of both
the employers and employees.
Thakur Raghbir Singh\'. Court of Wards, Ajmer, [1953] S.C.R.
ro49, considered.
It was not correct to say, having regard to the provisions of
ss. II and zo(z)(d) of the impugned .-\ct, that the Act did not lay
down any procedure for the Board to follow or that it was open
to tl:e Board to follow anv arbitrary procedure violating the
principles of natural justice.
There could be no substance in the contention of the petitioners that the provisions of the impugned Act relating to proofreaders, \vhom it included v-:ithin the definition of \\·orking journalists, period 'Jf notice unrl.er s. 3(2), retrospective operation in cases
specified by s. 4 and hours of work, imposed unreasonable restrictions on their fundamental right to carry on business.
Gratuity, however, was a reward for good, efficient and faithful service rendered for a considerable period and there could be
S.C.R.
SUPREME C'OURT l{EPORTS
15
no justification for awarding the same when an employee voluntarily resigned, except in certain exceptional circumstances. The
award of gratuity, therefore, to an employee who voluntarily
resigned from service after a period of only three years, under
s. 5(r)(a)(iii) of the Act, must be held to be unreasonable and
wholly unjustified.
'958
Express .. Vews·
papers (Private)
!Jtd., & AnOthe1
v.
The impugned A.ct \Vas not discriminatory in character and The Union of Indir4
did not violate Art. 14 of the Constitution. Working journalists
G- Others
formed a separate class by themselves and could be classified
apart from the rest of the newspaper employees on. a perfectly
intelligible differentia rationally related to the object which the
Act had in view. Nor could the provisions of either s. 12 ors. 17
of the Act, therefore, be said to be discriminatory in character.
Budhan Choudhary v. The State of Bihar, [1955] I S.C.R.
1045, applied.
The impugned Act contained no prohibition nor did it in any
way prevent the Wage Board from giving reasons for its decision
and thus passing a speaking order where it chose to do so, and it
could not, therefore, be said to have violated the fundamental
right of a citizen to move the Supreme Court for a writ of certiorari under Art. 32 of the Constitution.
Rex v. Hort/111mberland Com. Appeal Tribunal, Ex Parle Shaw,
[1951] 1 K. B. 711 and Rex v. Northumberland Compensation
Appeal Tribunal, Ex Parle Shaw, [1952] I K. B. 338, held inapplicable.
A. K. Gopalan v. The State of Madras, [1950] S.C.R. 88,
relied on.
The question whether a particular body was exercising
legislative, administrative or judicial or quasi judicial functions has
to be determined in the light of the statute under which it was
constituted and an administrative body functioning as such can
also be acting in a quasi-judicial capacity. The test would be
whether it had to decide on evidence and decide judicially. So
judged, there could be no doubt that the Wage Board under the
impugned Act was functioning in a quasi-judicial capacity.
Nagendra Nath Bora v. Commission<r of Hills Division and
Appeals, Assam, [1958] S.C.R. 1240, referred to.
Case-law reviewed.
Although this Court would not normally enter into questions
of fact, in this case the Wage Board had wholly ignored an essential condition for the exercise of its function and imposed a very
heavy financial burden on the newspaper industry. Although
the classification of the newspaper industry on the basis of grossrevenue, fixation of scales of wages, provisions as to the hours of
work leave, restrospective operation in specified cases, and grouping of newspapers into chains or multiple units could not be s~id
to be improper or un1ustified, they made the burden h.eav1er still.
16
SUPREME COURT REPORTS
[ 1959]
z958
The Board made no enquiry whatsoever as to the ability of the
industry to pay either as a whole or region-wise and did not call
E•pms News
.for or hear representations from them before finalising its decision.
papers (Priv.,1,) Its decision was, therefore, 11ltra !lires the Act and contrary to the
Ltd., & Anoflie1
principles of natural justice.
T • u .v. 11 1.
0RIGINAI, JURISDICTION: Petitions Nos. 91, 99, 100,
ne
nion o
n1 1a
& Othm
101, 103 & 116 to 118 of 1957.
Petitions under Article 32 of the Constitution of
India for the enforcement of Fundamental Rights.
AND
CrvrL APPELLATE JURISDICTION:
Civil Appeals
Nos. 699-703of1957.
Appeals by special leave from the decision of the
\Vage Board for Working Journalists published in the
Gazette of India Extraordinary (Part II, Section 3)
dated May 11, 1957.
1957. Dec. 3, 4, 5, 6, 10, 11, 12, 13, 17, 18, 19, 20.
1958. Jan. 8, 9, IO, 14, 15, 16, 17, 21, 22, 23, 24, 28.
M. K. Nambiar and G. Gopalakrishnan, for the petitioners in Petition No. 91 of 1957. The \Vorking Journalists Act, 1955, is ultra vi res as it infringes the fundamental rights of the Petitioners guaranteed by the
Constitution under Arts. 19 (1) (a), 19 (1) (g), 14 and
32. Article 19 (l)(a) which guarantees freedom of
speech and expression includes the freedom of the
employment of means to exercise those rights and
consequently comprehends the freedom of the Press.
The guarantee of an abstract freedom, of expression
would be meaningless unless it contemplated and
included in its ambit all the means necessary for the
practical application of the freedom.
(Freedom of
the Press-A Framework of Principles-Report of the
Commission on Freedom of Press in the United States
of America, 1947; Report of the Royal Commission
for the Press in the United Kingdom 1949; Ramesh
Thoprir v. The State of JlfadmB, [1950] S. C. R. 594;
Brij Bhusan v. State of Delhi, [1950] S. C. R. 605 ; /J}i:
parte Jackson, 96 U. S. 727; Lovell v. Oity of Griffin,
303 U.S. 444; Grosjean v. American Press Oo., 80 L;
Ed. 660; Schneider v. Irvington, 84 L. Ed. 155.
S.C.R.
SUPREME COURT REPORTS
Ii
Constitution of the United States of America, Revised
r958
and Annotated (1952), U. S. Govt. Printing Office
PP· 792, 988). If the impugned Act is viewed as a
Expms Newsptlpers (Private)
whole it will appear that it authorised the fixation of Ltd., & Another
salary of working journalists at a level which disables
v.
the running of the press. The impugned Act thus The Union °! lmliu
impedes, controls and prohibits the free employment
&- 0111"'
of the agencies of expression on that section of the
Press which form its vocal chord and therefore the
Act infringes the freedom contemplated under Art.
19 (1) (a) and is not saved by Art. 19 (2). In judging
the validity of thP enactment it must be tested by its
operation and effect (Dwarkadas Sriniva.s of Bombay v.
The 8holap·ur Spinning and Wea.vino Co. Ltd., [1954)
8. C. R. 674, 68:3; 1WinnP,sota. R:i: Rel. Ol8on, 75 L. Ed.
1357).
ThP Act afao violates the right guarantePd by Art. 19
(1) (g) of the Constitution as it places unreasonable restraint on the pPtitioners' freedom to carry on business
(Chintarnan Ruo v. The State of Madhya Pradesh, [1950]
8. r,, rt. 759; citPd with approval in Dwarka Prasad
Laxmi Narain v. The State of Uttar Pradesh, [1954)
8. C. R. 803 and Ch. Tika Rmnjidas v. State of U. P.
[1956] 8. C'. R. 393; The State of .Madras v. V., G. Row,
[1952] fol. C. R. 597, 606-607; The State of West Bengal
v. Subodh Gopal Bose, [1954) 8. C.R. 587; Virendm
v. &tale of Punjab, A.LR. 1957 S. C. 896).
The J.iw
imposing restrictions on fundamental rights must be
reasonable not ~nly in its substantive content but in
its procedural content as well (Dr. N. B. Khare v.
State of Delhi, [1950) S. C. R. 519; Gurbachan v. Stale
of Punjab, [1952] S. C. R. 737). The relevant criteria
for the fixation of wages were not laid down ins. 9 (1)
of the Act.
The criteria for the fixation of wages
la.id down in the Act were only relevant for fixing
minimum rates of wages, though the word" minimum"
used in the Bill 13 of 1955 as introduced in the Ra.jya
Sabha was subsequently dropped before the Bill
beeame the Act. It was not ma.de incumbent on the
Wage Board to consider the capacity of industry to
pay as an essential criterion or a. major factor in
3
18
SUPREME CO-CRT REPORTS
[1959]
1958
fixing wages: 'l'he other eircumstances, viz., " any
other circumstances which to the Board may seem
E.<prtss Newsrelevant" mentioned ins. 9 (1) of the Act was left to
paptrs (Private)
Ltd .. &- Another be determined by the Board on its subjective satisv.
faction which could not be controlled by any higher
The Union of India authority. The Act thus enables the Board to exert;,, Others
cise arbitrary powers in regard to the same and that
is unreasonable by itself (Thakur Raghbir Singh v.
Court of Wards, Ajmer, [1953] S. C. R. 1049; R. M.
Seshadri v. District Magistrnte, Tanjore, [1955] 1 S. C.
R. 686).
The procedure to be followed by the '¥age
Board was not laid down in the Act (c. f. The Bombay
Industrial Relations Act, 1946, as amended) and it
was open to the Board to follow any arbitrary procedure disregarding the principle of audi alteram partem
and as such the Act is unreasona!ile. The Wage
Board was not exercising legislative functions bnt
functions which were quasi-judicial in character. The
intention of the Legislature was to assimilate the
Wage Board as much as possible to an Industrial
Tribunal constituted under the Industrial Disputes
Act, 1947. If it is held thats. 11 of the Act is an
enabling provision, and gave the Board the arbitrary
discretion whether to exercise the same powers and
follow the same procedure of an Industrial Tribunal
or any procedure it liked, it is unreasonable.
The provisions of ss. 2 (f), 3, 4, 5, 8 to 11, 12, 14, 15
and 17 place restraints on newspaper establishments
which would have the effect of destroying the bu"Bi11ess of the
petitioners.
The right to
impose
restrictions on the right to carry on business under
Art. 19 (6) conferred no power on the Legislature to
destroy the business itself (Stone v. Farmers Loan and
Trust Co., 29 L. Ed. 636; Municipal Corporation of
the City of Toronto v. Virgo, 1896 A. C. 88; A. G. for
Ontario v. A. G. for the Dominion, [1896] A. C. 348).
The Act is discriminatory in character and violates
Art. 14 of the Constitution.
It gives the working
journalists a more favoured treatment as compared to
other employees in'several ways, statutory benefits by
way of retrenchment compensation, gratuity, limitation of the hours of work and leave, not enjoyed by
S.C.R.
SUPREME COURT REPORTS
19
others in comparable employments. It is restricted in
1958
its scope to a selected section of newspaper employees.
It gives them the benefit of the wage fixation by Express Newsh.
.
h
papers (Private)
devising mac mery m t e form of a Pay Commission Ltd., o;. Another
without the existence of any industrial dispute, withv.
out prescribing the major criterion of capacity to pay n,. Union of India
to be taken into consideration; (Britannia Bldg. and
&- 01hm
Iron Co. Ltd., (1954) 1 L. L. J. 651, 654; Union Drng Co.
Ltd., (1954) 1 L. L. J. 766, 767; Report of the Committee on Fair Wages, pp. 13-15, paras. 21, 23 and24);
or following the procedure prescribed by the Industrial Disputes Act, 194 7,
even in disregard of
principles of audi alteram partem. The employers of
the newspaper establishments are subjected to discriminatory treatment by the Act in that (1) they are
singled out from all other industrial employers who
are covered by the ordinary law regulating industrial
relations under the Industrial Disputes Act, 194 7; (ii)
they have been saddled with new burdens in regard to
a section of their workers in matters of gratuity, compensation, hours of work and wages; (iii) s. 12 of the
Act makes the decision of the VI age Board binding
only on the employers and not on the employees and
(iv) s. 17 provides for recovery of money from employers only and not from employees in the same manner
~s an arrear of land revenue.
The classification made by the impugned Act is
arbitrary and unreasonable in so far as it removes the
newspaper employers vls-a-vis the working journalists
from the general operation of the Industrial Disputes
Act, 1947.
The right to apply to Supreme Court for enforcement of a fundamental right under Art. 32 is itself a
fundamental right guaranteed by the Constitution
(Ro·rnesh Thopar v. The State of Madras, [1950) S. C.R.
594, 597).
The right to claim a writ of certiorari
against a decision is dependent on the fact that the
impu<rned decision on its face is a "speaking order".
(Rr,x ;, Northumberland Compensation Appeal Tribunal,
Ex parte Shaw, [1951) 1 K. B. 711, affirmed by the
Court of Appeal in [1952) 1 K. B. 338; A. K. Gopolan v.
The State of Madras, [1950) S. C.R. 88, 243). The Act
20
SUPREME COURT REPORTS
[1959]
I958
contravenes Art. 32 of the Constitution because it does
not provide for giving any reasons for the decision to
E.:xpr11ss Newsd
papers (Private/ be made by the Wage Boar .
Ltd .. & Another
Decision of the Wage Board is illegal and void
v.
because (1) the Act under which it is made was ultra
The Union of lndi•vires (Mohd Yasin v. Town Area Committee of Jalala-
&- Olhers
bad, [1952] S. C. R. 572; Himatalal Harilal Mehta v.
Sta.le of U. P., [1954] S. C.R. 1122); (ii) the decision
itself infringes the fundamental rights of the petitioners (Bidi Supply Co. v. Union of India, [1956] S. C. R
267 and (iii) the decision is ultra vires the Act) Pandit
Ram Narain v. State of U. P., [1956] S. U. R. 664). The
reconstitution of the Board on the retirement of one of
its members was ultra vires and unauthorised by the
Act as it stood at the time, the Rules having been
published on July 10, 1956.
The procedure as to
decision by majority is not warranted by the Act, and
the Rule which sanctioned such a procedure is ultra
vires the Act.
The procedure followed by the Board
offended the principles of natural justice and is therefore invalid. It did not follow the procedure of an
Industrial Tribunal even though on two occasions, viz.,
when the questionnaire was issued and when a number
of newspapers failed to reply to the questionnaire, the
Board asserted that it had the powers of an Industrial
Tribunal.
Neither in the questionnaire nor at any
time thereafter were concrete proposals submitted by
the Board to the newspaper establishments. Its decision is invalid as no reasons arc given for it nor does
it indicate what considerations prevailed with the
Board in arriving at it.
The classification of newspapers on the b11sis
of gross revenue is contrary to . the provisions of
the Act.
In the gross revenue which i.5 earned
by newspaper establishments advertisement revenue ordinarily forms a large bulk of such revenue
and unless the proportion of advertisement revenue to
the gross revenue were taken into consideration it
would not be possible to form a correct estimate of the
financial status of a newspaper establishment with <t
view to its classification. Profit and loss of 1ww~paper
establishment should be the proper test and if that
S.C.R.
SUPREME COURT REPORTS
21
test were adopted it would give an altogether different
r958
picture.
lJ 'l
h
Express News~
nt1 now w enever the wage had to be fixed for
papers (Priuate)
an industry the relevant consideration had always Ltd., & A11otltcr
been the capacity of the industry to pay. The wages
v.
which are normally fixed after a general inquiry The Union of India
applicable to the whole industry have always been
& Others
minimum wages.
Assessment of a wage level and
scale only by reference to gross revenue was erroneous.
The decision suffers from another major defect in
computing gross revenue not for each newspaper
but collectively for the organisation which might be
running a number of papers.
The result of this
mode of ca.lculation was that an organisation publishing a large number of papers might well fall within
the top class by virtue of its gross revenue although
ettch onc of the papers taken individually might·be running at a loss. This process of considering the multiple
units or a chain of newspaJll'rs as one establishment
hits affected the petitioners adversely and is unantho.
rised by the Act. The YVage Board was not authorised
liy the Aet to tix the 1rnges of working journalists
in relation to the whole industrv but could do so only
in respect of individual establishments as will appear
from the ddinition of a " newspaper establishment"
given in s. 2( d) of the Act. An establishment can
only mean "an establishment " and not a group of
them, even though such an individual establishment
may produce or publish one or more newspapers.
(Prarnt Kurnar v. W. T. C. Parker, A. I. R. 1950 Cal.
ll6, ll8; S. R. V. Service Co. Ltd. v. State .of Madras,
A. 1. R. 1956 Mad. ll5, 121-122).
The decision of the Wage Board is illegal as it docs
not disclose that the capacity to pay of the individual
<'Htabli8hment waH ever taken into considemtion.
There is nothing on' record to suggest that both as
regard rates of wages and the scales of pay the Wage
Board ever took into account as to what the impact of
its decision would be on the capacity of the industry
to pay either as a whole or region-wise.
Even as
regards the fixation of wages the Wage Board does
22
SUPREME COUHT REPORTS
[1959]
'958
not seem to have taken into a,ccount the other provisions of the Act which conferred upon the working
Express News1
cc
h
papm (P•·ivate) journalists other benefits which wou d auect t e payLtd .• .s. Anoehor ing
capacity
of the newspaper establishments.
v.
Furthermore the working journalists constitute only
T/.e Union of In~ia 1/5 of the total staff employed by various newspaper
"' Others
establishments. If the conditions of service of working journalists were to be improved by the Wage
Board the other employees who form 85% wers bound
to be restive and likely to raise industrial disputes for
betterment of their conditions of service. This would
impose an additional financial burden on the newspaper establishments and wouid substantially affect
their capacity to pay. The retrospective operation of
the decision of the Wage Board was also calculated to
impose financial burden on the newspaper establishments.
The Wage Board exceeded its power in giving
retrospective operation to its decision.
The Wage
Board had acted illegally in fixing scales of pay for a
period of three years when the Act does not give it
such authoyity. Further the Wage Board was handicapped for want of Cost of Living Index.
K. M. ~Munshi, L. K. Jha, S. S. Shuk/,a, Balhhadra
Prasad Sinha and R. J. Joshi, for the petitioners in
Petitions Nos. 99 to 101 of 1957. The freedom of the
Press is a fundamental p~rsonal right of the petitioners.
It rests on the assumption that the widest possible d.issemination of information from diverse and antagonistic sources is essential to the welfare of the public.
Such freedom is the foundation of a free government
and as such enjoys a· preferential position among the
constitutional guarantees. This is a " preferred right ".
The purpose of the constitutional guarantee of free
speech is to prevent public authority from assuming
the guardianship of 'the public mind (Thomas v.
Collins, 89 L. Ed. 430 ; The Supreme Court and the
right of :Free Speech and Press-Annotation in 93 L.
Ed. 1151 ; Beauhairnois v. Illinois, 96 L. Ed. 919, 943dissenting opinion of Douglas, .J.).
While the Press
enjoys no immunity from the application of the <reneral
laws relating to industrial relations, an Act ~r anv
S.C.R.
SUPREME COURT REPORTS
23
of its provision would violate the right of free speech
r958
and exprE'ssion if it lays a direct and preferential
Express }.Tewsburden on the freedom of the Press ; if it has a
papers (Private)
tendency to curtail circulation and thereby 'narrow the Ltd .• & Another
scope of disseminating information; if it fetters the
'"
petitioners' freedom to choose the means of exercising The Unio 11 of India
their right to freedom of expression and if it is likely
& Othm
to undermine the independence of the Press by having
to seek Government aid.
The Act singles out the
Press for levying upon it a direct burden which is
excessive and so restrictive as to be prohibitive. It
begets a class of workers whose benefits and rights are
given a preferential enforceability parallel to that of a
public debt. The impugned Aut by s. 9 leaves, in
violation of the Constitution, the fixation of wages to
an agency invested with arbitrary and uncanalized
power to impose an indeterminate burden on the wage
structure of the Press, such employer and employee
relations at its descretion as it thinks fit, and such
burden and restrictions for such time as it thinks fit.
The Act aml the decision of the Wage Board, which
under the Act becomes enforceable as a part of it, have
imposed an excessive and prohibitive burden which
will have a tendency to curtail the revPnue and restrict
circulation which is the means of imparting information and giving free expression to speech, impose a
penality on the petitioners' right to choose the instruments for its exercise or to seek alternative media of
expression, drive the Press to seek Government aid in
order to smvive and prevent nem;papers from being
started. The Act has creatcrl an impossible situation
in which the petitioner eould only say "I c-annot live,
l cannot die and I cannot commit suicide". Even if
the petitioners were to elosc down their business and
dispose of all their assets they won Id not be in a position to meet all the liabilities.
.
The Constitution does not pPnnit any abridgment
of the fundamental right of freedom of speech and
expression unless it falls within the categories of
restrictions mentioned in Art. 19(2).
When the permitted restrictions were incorporated special care was
taken by the framers of the Uonstitution to see that
24
SUPREME COURT REPORTS
[1959]
'958
freedom of speech was protected and that the right
should not be at the mercy of the legislature which
Express Newsmight want to impose excessive burden on the Press.
papers tPrimtr) It is for this reason that the "Public interest" restricLtd., {?' Anothrr
v.
tion in Art. 19(6) app<"aring against the fundamental
Th• U11io11 of lwlia right in Art. 19(l)(g) is not to be found in Art. 19(2).
&- 0111m
A llistinction ha8 to be drawn between the Constitution of U. S. A. and India. What is known as the
"due proces8 of law" in America has been specifically
omitted from the Constitution of India. In U. S. A.
the " due process" clause enabled the Supreme Court
to read into the Constitution any doctrine restrictive
of the fundamental right, e. g., in the 1930's the U. S.
Supreme Court had held that statutory fixation of
minimum wage in the newspaper industry was violation of fundamental rights of free speech, but after
some years the samP Court acting under the discretion
given by the due process clause took cognizance of
altered circumstances in labour relations and held that.
the imposition of/a minimum wage on the Press did
not violate the fundamental right (Constitution of the
United States of America, Revised and Annotated
(1952), U. S. Govt. Printing Office, pp. 792, 988).
The
Indian Constitution does not permit restriction of
frccclom of speech except under the limitation set by
Art. 19(2).
l{estrictions tlrnt eould be held intra vires
in respect of other industries would still be ultra vires
under Art. 19(l)(a) of the Constitution in respect of
the Press industry lJecause of the special privilege of
right of free speech.
Any direct restr ._ 1 wn placed by
Government on the Press would be -v wlation of Art.
19(l)(a), and therefore even if the Government had
sought fo impose a minimum wage for the Press by
direct legislation it would have been equally unconstitutional. This illegality, however, would not attach
to the finding of an adjudicatory machinery such as
was contemplated under the Industrial Disputes Act,
1947. Where Government provided a media for the
settlement of disputes and claims between citizens
and citizens there was no question of any contravention of fundamental rights which were protected
against governmental encroachment.
S.C.R.
SUPREME COURT REPORTS
25
The various sections of the Act have the effect of
I95B
placing restrictions on the press which would inevit.
bl
h
h
ff
f
h
f
Express ]\.Tewsa y
ave t e e ect o restricting t e reedom of papers (Private)
speech and expression in contravention of Art. 19 (1) Ltd .• & Auother
(a). The Act has created a privileged class of working
v.
journalists above the other workers either in this The Union nf India
country or anywhere also, above contract and above
"' Others
the law of the land.
The Wage Board has exceeded its authority and
has arrived at conclusions and findings which restricts
the fundamental rights of the petitioners. The Act
authorises the Central Government to constitute a
Wage Board for fixing rates of wages. This does not
authorize the Board to enter into the wider question
of determination of scales of pay. Fixing could only
mean fixing with reference to a point of time. The
Legislature did not contemplate that single wage
should determine the wage scales, for all time to come.
The whole framework of the Act was based on minimum wage and the sudden removal of the word
"minimum " has caused all these difficulties. "Rates
of wages " and not " scales of wages", the Wage
Board was to uonsider. The term "rates of wages"
applies only to a particular point of time.
[Sinha, J.-Section 9 (2) of the Act says that the
Board may fix "rates of wages for time work and for
piece work". They cannot have ·any reference to
scales. The same words in the statute mean the same
thing. They cannot mean different things in different sections.]
Yes .. These words are used again and again in the
Act. In the Minimun Wages Act, the Payment
of Wages Act, etc., where the same expression" rates
of wages" is used to indicate a wage fixed in time
and amount.
The Wage Board has exceeded its
power in fixing the Rcales of wages and increments
and thereby places a fetter on the Press, not contemplated by the Act.
The Act and the Wage Board have disregarded all
considerations which according to authority and law
were germane to the proper fixation of wages without
•
26
SUPREME COURT REPORTS
[1959]
I958
placing restrictions on fundamental rights. Even the
Minimum Wages Act provides for periodical reviews,
Express News·
d
l i:
ld b
"fi d
papers (Private) an proposa s ior minimum wages shou
e not1 e
Ltd., & Another for inviting the opinions.
v.
The decision of the Wage Board has been arrived
The Union of India at in violation of the procedure prescribed bys. 11/ of
&· Others
the impugned Act and in ·violation of the rules of
riatural justice and is thus illegal.
The Wage Board has been unreasonable in basing
wages on revenue from all sources rather than on the
revenue which the working jotirnalists contributed by
their labour.
Classification of newspapers on the basis of the
gross revenue of all papers run by an organisation
and fixation of wages on such classification has led to
result8 which are absurd and discrimina torv in effect
and ignore the principle enunciated by the.Act itself.
As an example, take the case of a paper with small
circulation in Kutch which is placed in a higher
category than a paper in Bombay simply because the
former is part of a larger organisation.
The Wage Board has not taken care to remain
within the terms of the impugned Act, namely, that
the wages should be based on regional consideration.
The Wage Board has given its decision in complete
disregard of the newspapers' capacity to.pay. It did
not take proper care in framing its decision. Lack of
such care in framing its decision makes it unreasonaille and hence restrictive of fundamental rights.
The 'Vage Board has exceeded its authority by
giving· retrospective effect to the wage structure
devised by it. This is invalid and ultra vires the Act.
Section 12 of the Act creates one-sided obligation
by making decision of the Board binding only on the
employers. Such one-sided obligation can be appropriate when a minimum subsistence wage is fixed but
cannot attach to payment of wages at luxury ·levels.
This unilateral obligation on the employer leaves it
open to the journalists to agitate for an increase in
wages before an industrial t6bunal, but it precludes
the employer from seeking any alteration under any
circumstances. The Act has provided no machinery
$.C.R.
SUPREME COURT REPORTS
27
for a review or revi8ion of the wage strndun· Pven if
1958
circumstances changer!.
t: .• prc.<s .\"c:;•sRestrictions on fundamental right to do business papers IPrivatd
a.rise because the Act and the decision of the Wage I.Id .• ,s, Another
Board have the effect, firstly, of considerably incrcasv.
ing the operating cost and, secondly, of fettering the The C:nion of I11di"
conditions of service or the terms of the contract of
<'> Otliers
service between the employer and the employee.
By disregarding the disparity in regional conditions
the Wage Board has discriminated between pa per and
paper, employPr ·and employer and employee and
employee.
S. P. Sinha, Gurbachan Singh, llarbans Singh and
R. Patnail,,, for the petitioners in Petition No. 103 of
1!)57.
S.S. Shukla, for the petitioners in Petitions Nos. 116
to 118 of l!l57.
Jlf. C. Setalvad, Attorney-General for lridia, B. Sen
a.nrl R.H. Dhebar, for respondent No. l (The Union
of India) in all the Petitions. Before going into the
merits of the case it is necessary to examine the background and the perspective in which the Act was
enacted, the carl'fnl inquiry which preceded its enactment and the conrlitions which the Act was designed
to meet. (Report of the Prl'ss Commission, dated
J nly 14, 1954; Rqiort of th1> Inquiry Committee
constituted in l!J47; Beport of the C. P. and Berar
Press Inqnir.v Committee constituted on March 27,
1948).
The Act docs not infringe any of tho fundamental
rights of the pd.it ionL'rs guaranteed under Arts. 19( I)
(a), 19(l)(g), 14 and 3~ of the Constitution. The functions of the \Vage Board constitnkd urnkr "· 8 of the
Act were not jnrlicial or cpmsi-judi1·i;li in C'!mraC'tcr;
the fixation of tlw rat rs of wagc>s- by th<> ""'l"r Board
was a legislativ<' art and not a judicial one; the Wage
Board arrived at its rlt>cision on a ('tmsidrration of all
the criteria laid rlown ins. 0(1) of th<' Aet for tix,i,tion
of w.ages ancl the makri<i.l as well as tlw Pvirlrnce
placed before it; a large number of the dcl'isiOJ\S of
the Wage Board was unanimous; unrler the Act the
Wage Board has the power and authority to fix the
28
SUPREME COURT REPORTS
[1959)
1958
scales of wages also and/ to give retrospective operaExpress Newsti on to its decision.
The fina,ncial posit.ion of the
papers (Private) petitioners was not such as to lead to their collapse as
Ltef .. & A11other a sequel to the enactment of the provisions of the Act
..
.v.
. and the decision of the Wage Board.
1 he Umon of India
Regarding alleged infringement of Art. 19(1Xa), I
& oihm
submit that the legislation should be examined in
order to determine whether it is legislation directly in
respect to the fundamental rights mentioned in the
Constitution.
The principle enunciated by the
Supreme Court in several decisions is that when a
legislation is attacked on the ground of contravention
of a fundamental right, the Court must first examine
whether, it directly deals with the fundamental right.
If the legislation is not one directly with respect to a
·fundamental
right
no
further question
arises,
(A. K. Gopalan v. The State of Madras, [1950] S. C.R. 88,
per Kania, C. J., Ram Singh v. State of Delhi, [1951]
S. C.R. 451, 455).
The Supreme Court has also in this
connection invoked the doctrine of "pith and sub-
. stance". The fact that a legislation, directed in its
pith and substance to regulate gambl\ng, incidentally
placed certain restrictions on business was held not to
make the law violative of the fundamental right to
rarry on business. (State of Bombay v. R. M. D. Chamarbaugwal.a, [1957] S. C. R. 874). The provisions of
the Act are clearly designed to regulate the conditions of service of journalists and not the freedom
of expression or speech, and therefore no question
of the infringement of fundamental right under
Art. 19(l)(a) arises.