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Published : May 26, 2010 | Author : aarsha
Category : Constitutional Law | Total Views : 8637 | Unrated

  
aarsha
Aarsha Unnikrishnan
 

Right to Circulation – Facet of Freedom Of Speech

Freedom of expression has always been emphasized as an essential basis for the democratic functioning of a society. The reasons for this are: the right of an individual to self-fulfillment, which right requires the communication of thought; the importance of constantly attempting to attaint he truth, an attempt which is frustrated if information is suppressed or comment blocked; the inherent democratic right to participate in decision-making, which obviously implies the freedom to obtain, communicate and discuss information,; and the practical importance of maintaining the precarious balance between healthy cleavage and the necessary consensus; "coercion of expression is likely to be ineffective (and)…. Conceals the real problems confronting a society… It is likely to result in neglect of the grievances which are the actual basis of the unrest and thus prevent their correction" Freedom of press has always been a cherished right in all democracies . "Growth and development of representative democracy is so much intertwined with growth of press that the press has come to be recognized as an institutional limb of modern democracy." The newspaper not only presents facts but also gives interpretation of facts and statements of opinions through its editorials and also propagates ideas and ideologies. They are supposed to guard public interests by bringing to fore the misdeeds, failings and lapses of the government and other bodies exercising governing power. The press has therefore been rightly described as the Fourth Estate.

Freedom means absence of control , interference/ restriction. Hence, the expression ‘Freedom of Press’ means the right to print and publish without any any interference from the State or any public authority.

§ It is a ‘Basic’ ‘human right’[1] and also been called as ‘Preferred right’[2].What is known as the freedom of press is nothing but the freedom of expression of every citizen which is guaranteed by Art 19(1)(a) which includes :
(i) the right to lay what sentiments he pleases before the public, or the right to impart information and ideas;
(ii) the right to receive information [3] and ideas from others through any lawful medium.

Historically, the growth and development of representative democracy is so much intertwined with the growth of press that the press has come to be recognized as an institutional limb of modern democracy. Ideologically , the indispensability of the press for the proper functioning of democracy is so much embedded in U.S.A that Jefferson once said that if he had to choose between having ‘ a government without newspapers’ on the one hand and ‘newspapers without a government’ on the other hand he would have no hesitation in preferring the latter. This was the view which eventually triumphed in the adoption of the first amendment to the American Constitution in 1791. A democratic political society or government which rests on the consent of the people and the contribution of their ideas to public questions can rest only on the free debate and free exchange of ideas amongst the people[4]. There cannot be any collective decision after mature deliberation upon any issue unless there is an opportunity for free exchange of views amongst the participants , which in a representative democracy means the electorate as well as their representatives assembled in parliament.

In the ultimate analysis , freedom of the press in a representative democracy with a party government means the right of all political parties to have access to the mass media so that they may appeal to the electorate on the basis of their respective programmes and ideology. In short democracy , i.e. government cannot function unless the people are well informed and free to participate in discussions of public issues by having the widest choice of alternative solutions of the problems that arise. but in the modern world of speed and manifold engagements , very few amongst the public have the time or leisure to go through the fountain sources of information. The daily newspaper is the only material which most people read. The people can therefore be given the fullest scope for thought and discussion on public issues , if only the newspaper are allowed to represent different views , including the points of oppositions , without any control from the government to represent only one shade of opinion , or the policy adopted by the government . Public criticism is essential to the working of democracy[5]

In words of Blackstone :
“The liberty of press is indeed essential to the nature of a free state …the only plausible argument heretofore used for restraining the just freedom of the press , “that it was necessary to prevent the daily abuse of it “, will entirely loose its force , when its shown …that the press cannot be abused to any bad purpose without incurring a suitable punishment : whereas it never can be used to any good one, when under the control of an inspector”.

The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right to freedom of speech and expression. It has been held that this right to freedom also includes press freedom. It is an implied or deduced right. The economic and business aspects of the press are regulated under Article 19(1)(g) which provides for freedom of profession , occupation, trade or business which is restricted by Article 19(6) which includes provisions for public interest, professional and technical qualifications and state nationalization- total or partial. Freedom granted under Article 19(1)(a) is restricted by the limitations which are mentioned in Article 19(2) which provides that the guarantee of the above right would not affect the operation of any existing law in so far as it is related to , or prevent the state from making any law relating to libel, slander, defamation, contempt of court or any matter which offended against decency or morality or which undermined the security of or which tended to overthrow the state.

Article 19(2) has been amended twice since the commencement of the Constitution. The first Amendment was in 1951 and it was followed by a second one in 1963.
Article 19(2)was first amended by the Constitution (First Amendment) Act ,1951. This Amendment enlarged the scope of the restrictive clause by addition of three new grounds viz. Friendly relations with foreign states , public order and incitement to an offence.
As a result of the cries and agitation for secession from India by the regional groups Article 19(2) was further amended . It was amended by the Constitution [Sixteenth Amendment] Act 1963 which included one more ground in the clause, viz. "sovereignty and integrity of India."

The clause, Article 19(2) now runs as follows :
"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 interest of the sovereignty and integrity if India, 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) is limited by the above clause the courts have adopted a liberal view while deciding questions pertaining to press freedom of constitutional validity of an impugned statute. The superior courts discharged the role of sentinel on the 'qui vive'.

The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers . There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of press is a heart of social and political intercourse, It is the primary duty of Courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate."

The freedom of speech and expression under Art 19(1)(a) is a concept with diverse facets , both with regard to the content of the speech and expression and in the means through which communication takes place. It is also a dynamic concept that has evolved with time and advances in technology. Art 19 (1)(a) covers the right to express oneself by word of mouth, writing , printing, picture or in any other manner. It includes the freedom of communication and the and the right to propagate or publish one’s views. The communication of ideas may be through any medium , newspaper, magazine or movie [6], including the electronic and audiovisual media. The right to free speech and expression includes the right not only to publish but also to circulate information and opinion. Without the right to circulate , the right to free speech and expression would have little meaning . the freedom of circulation has been held to be as essential as the freedom of publication[7].

Freedom of press consists of a number of rights and one such right is freedom of publication. Publication means dis­semination and circulation. Liberty of circulation is as essen­tial to that freedom as the liberty of publication. Indeed with­out circulation the publication would be of little value. The newspapers should have the freedom to publish any number of pages or to circulate it to any number of persons. Right to circulation is said to be the facet of Freedom of Speech which is one of the fundamental rights guaranteed to the citizens of our country under Art 19(1)(a) of our Constitution. Attempts were made to regulate the dissemination and circulation of newspapers by the government through legislative or executive measures. There are many case laws that bear testimony to these attempts. In Ramesh Thappar the question was the scope of the freedom of circulation under Article 19 (1) (a) of the Con­stitution. The Supreme Court held that the expression "public safety" ordinarily means security of the public or freedom from danger. If understood in that sense, then anything which affects public health may be taken to be covered by the expression pub­lic safety. The restraint on speech would not be justified in the interest of public order or public safety as they are too wide to be covered by the narrower expression. The decision merely stated that the government was not authorized to prevent entry of matter in the interest of public safety or in the interest of public order. The decision positively laid down that the State can impose res­trictions on a newspaper only when it is made with a view to combat and prevent activities which may undermine or over­throw it. In Sakal Papers v. Union Of India [8] the Supreme Court held that the state could not make laws which directly affected the circulation of a newspaper for that would amount to a violation of freedom of speech. The right under Art 19(1)(a) extends not only to the matter which the citizen is entitled to circulate but also to the volume of circulation. This case arouse out of a challenge to the newsprint policy of the government which restricted the number of pages a newspaper was entitled to print. There are many judicial decisions that has laid down that newspapers should be left free to determine their pages and their circulation. the expression “Freedom of speech and expression” though not expressly used in Art 19 was comprehended under Art 19(1)(a) and meant freedom from interference with the content and the circulation of newspaper[9]” ‘Freedom of Speech and expression’ must be broadly construed to include the freedom to circulate ones own views by word of mouth or in writing or through audio visual media . this includes the right to propagate ones view through the print or other media.

Freedom to air view is the lifeline of any democratic institution and any attempt to stifle or suffocate or gag this right would sound a death knell to democracy and would help usher in autocracy or dictatorship[10].Any attempt to deny the right to circulation and propagation of ideas must be frowned upon unless it falls within the mischief of Art 19(2). The right to circulate encompasses the right to determine the volume of circulation.

Freedom of speech and expression includes the right to propagate one's ideas. Right to propagation of ideas carries with it the right to publish, to disseminate and circulate them to any class of readers, subject of course to the imposition of reason­able restrictions under Article 19 (2). The fixation of number of pages which a newspaper is entitled to publish may bring down the volume of circulation of some newspapers by making the price unattractive. Again this would indirectly compel news­papers to restrict the- dissemination of news and views and thereby affect the rights guaranteed under Article 19 (1) (a).

Advertisements are not only a source of revenue but also one of the factors for the circulation of newspapers. The adver­tisement revenue of a newspaper is proportionate to its circul­ation. Thus higher the circulation of a newspaper the larger would be its advertisement revenue. No businessmen will give advertisements to further his business prospects in papers hav­ing no circulation or of less circulation.

Amplitude Of The Freedom Of Circulation
· Freedom to circulate extends not merely to the matter which the press is entitled to circulate but also the volume of circulation [11]. In short its both quantitative and qualitative [12].Our constitution guarantees freedom of thought and expression , the only limas being imposed is under Art 19(2).Every newspaper posses the right to publish anything it likes , unfettered either by prior restraint or subsequent punishment in any form . The freedom of the press is hampered if the editorial policy of a newspaper is controlled or influenced either by the State or by private persons , parties or financers whose only object is to secure their respective interests irrespective of the public interests in the dissemination of information and ideas from competing sources , provided , of course , its not unlawful. The freedom of a newspaper or other publication , from the aspect of volume of circulation , means that it is entitled to propagate its ideas and views and reach any class and number of readers as it chooses , subject, of course , to constitutionally permissible restrictions and to print and publish any number of pages it chooses. This freedom would be undermined by any excessive burden imposed on the press which narrows its scope of dissemination of information / renders it so uneconomical as to ultimately compel it to seek Government aid , which would obviously destroy its freedom .the foregoing freedom would thus be effected by any law/ State action :

1) which fixes a max no of pages which a newspaper would be entitled to print [13].

2) which prohibits a newspaper to publish a supplement or a new edition without permission of the government – to be granted / refused to be granted , as its unfettered discretion.

In Bennet Colemanns case , the newsprint policy of the government was struck down on this ground :

The newsprint policy which permits newspapers to increase circulation by reducing the no of pages , page area and periodicity by reducing circulation . these restrictions constrict newspapers in adjusting their page no and circulation”.

3) Which fixes a minimum price which a newspaper must charge , according to the no of pages which it is entitled to publish under that law, i.e., by laying down a price – scale varying with the no of pages printed.

In Sakal Papers case , the court held that :

Though the State is entitled to regulate prices of newspapers to ensure fair price to consumers of newspapers , and though the State may be entitled to control unfair competition among newspapers ,as in the case of other business , in India , it would be unreasonable restriction on the Freedom of press , under Art 19(2), if such price fixation is calculated to curtail the circulation of particular newspapers. Thus , where unfair competition between the bigger and smaller newspapers is sought to be achieved by bringing the bigger units to the level of the smaller, by obliging the biggers newspaper to charge a min price according to number of pages it chooses to print , the avowed object and direct effect of such regulation of price according to the volume of the newspaper is to curtail the circulation of a bigger newspaper because it would make the price so unattractively high for a class of people as is likely to deter it from purchasing such newspaper.”

4)Which reduces the space for advertisement ; because if the space for advertisement if reduced , earnings will decline , and if the price has to be raised , that would affect circulation [14].

5) Government making a discriminatory distribution of its own advertisements [15].

6) The freedom to circulate the printed matter , whether it is a newspaper , pamphlet or handbill , includes the right to distribute it to other persons in any legitimate manner, subject to regulation by the State , in the interest of protecting streets and public places from littering or obstruction of traffic etc.

Freedom of Press does not include :
# Immunity from general laws of the land , which are applicable to the Press, without being discriminatory. The position would be different if the burden is imposed on the Press is excessive [16] and directly endangers its existence or circulation.

# The press is not immune from legislations to control the economic activities of the press against monopolies / unfair trade practices. The press is not immune from such legislation , because the press has a business aspect , which must be subject to reasonable restrictions imposed under Art 19(6) of our Constitution . But if the legislation does not control monopolies / unfair trade practices , it must be strauck down as an unreasonable restriction under Art 19(2).

# In general law, the criminal law does not acknowledge any special immunity or protection in favor of the press.

# Immunity from the ordinary forms of taxation for the support of the government , without being especially directed against the press. The press cannot be singled out for imposing prohibitive burdens on its right to start a newspaper or to circulate it so that it may be driven to seek Government aid in order to survive.

# In short , the State is not debarred from exercising any of its legitimate powers , as the effect of such legislation does not directly affect the circulation / other aspects of Freedom of Press.

Contents of Freedom Of Press
Freedom of expression includes the freedom to propagate one’s own views as well as of others and to communicate them to others , it follows that the freedom of the press includes the right :
(i) to print and publish news and views[17].

(ii) Such views or opinions may be those of the editor or author but also those of other people printed under his direction[18].

(iii) To distribute or circulate such printed matter to any other party[19].

(iv) The freedom extends to the discussion and publication of views relating to ‘all issues about which information is needed to enable the members of society to cope with the exigencies of the period ; and is not necessarily confined to ‘political’ or ‘public affairs’.

(v) It includes the right to comment on public affairs and to criticize public men and measures and to criticize the government including its defense policy and the conduct of armed forces , without prejudice to national security [20].

(vi) A corresponding right to collect information relating to public affairs or the right of access to the sources of such information [21].

(vii) The right of the Press to collect information from diverse sources on a comparative basis , free from any monopolistic control from the government .

(viii) The freedom not to publish any news , article, correspondence or any other matter , nor to include anything at the dictate of an authority.

(ix) The right to refuse advertisement , including a Government advertisement . if however , a newspaper accepts Government advertisement , it would be bound to abide by the terms and conditions of the contract or law relating such contracts.

(x) Freedom of choice in the matter of employment / non- employment of the necessary means of exercising the freedom of expression , including employment in the editorial force.

(xi) Immunity from any tax specially imposed on the press / on advertisements in a newspaper which was calculated to limit its circulation[22].

Case Law’s
# Ramesh Thappar v. State of Madras [23] the question was the scope of the freedom of circulation under Article 19 (1) (a) of the Con­stitution. The government of Madras banned 'the entry and circulation of an English weekly, 'Cross roads', published from Bombay into the city of Madras. The Madras Mainten­ance of Public Order Act, 1949, permitted the State to prohi­bit the entry into or circulation of any document or classes of document within the state or any part of it. The petitioner contended that this provision contravened Article 19 (1) (a) of the Constitution and was hence void. The state argued that the expression 'public safety' in Section 9 (1-A) relates to law and order which in turn has a relation to "security of province". In other words, it amounted to imposition of reason­able restriction in the interest of security of state under Arti­cle 19 (2). However, Section 9 (1-A) specifically refers to 'public safety' and the 'maintenance of public order' as the purpose for which any action may be taken. The question be­fore the Court, was whether to read public order as a wider concept inclusive of public safety or treat it as distinct and exclusive. If public safety and public order were treated as dis­tinct grounds then the Madras legislature was incompetent to legislate a law in the interest of public safety. The Supreme Court held that the expression "public safety" ordinarily means security of the public or freedom from danger. If understood in that sense, then anything which affects public health may be taken to be covered by the expression pub­lic safety. The restraint on speech would not be justified in the interest of public order or public safety as they are too wide to be covered by the narrower expression. Patanjali Sastry, J. emphasized that unless a law restricting freedom of speech and expression is solely directed against undermining the security of state or overthrow of it, such a law will not be cover­ed by Article 19 (2), although the restrictions may be in the interest of public order. Hence, it means that Section 9 (1-A) which authorized the imposition of restrictions for wider pur­pose of securing 'public safety', or maintenance of public order fell outside the authorized restrictions under Article 19 (2) and therefore void and unconstitutional. This means that the ex­pression public order and public safety must give way to secu­rity of state. An offence which endangers security of state can be restricted but not an offence covering public order. The Supreme Court did not go into the nature of the material appearing in the weekly. The decision merely stated that the government was not authorized to prevent entry of matter in the interest of public safety or in the interest of public order. The decision positively laid down that the State can impose res­trictions on a newspaper only when it is made with a view to combat and prevent activities which may undermine or over­throw it.

# Virendra v. State of Punjab[24], the Constitutional validity of Section 3 of the Punjab Special Powers (press) Act 1956 was raised. Section 3 (1) authorized the government to prohi­bit the entry of a newspaper, leaflet or any publication if it

contains matters likely to affect or prejudice maintenance of communal harmony or public order. The virtual effect of Sec­tion 3 was that it completely prohibited the entry or circulation of papers published in New Delhi into the whole of Punjab. Since Section 3 did not place any time limit for the operation of any order under it or provide for representation against it, the section was held to be unreasonable and unconstitutional.

# Sakal Papers (P) Ltd. v. Union of India[25]a, the News­papers (Price and Page) Act 1956, and the Daily Newspaper (Price and Page) order 1960 prescribed the number of pages of a newspaper and the price to be charged. The order also prescribed the number of supplement to be published, the area and the size of the advertisement matter in relation to other matters contained in a newspaper. In defiance of these mea­sures, the government contended that the intention of the order was to regulate the price charged for a newspaper in relation to their pages. It was also said that the order was a neces­sary sequal to the Press Commissions recommendation that un­fair practices and monopolistic tendencies should be curbed.

The petitioners contended that the impugned order result­ed in compelling them either to raise the price of the paper if they want to maintain the present page level, or to cut down the number of pages to maintain the existing price. Either way this would result in reducing the circulation of the paper. If the price of the paper was raised, it would become unattrac­tive to a certain class of readers. Reduction in page level leads in turn to reduction in the area of news published. This again would make the paper unattractive to the readers. In other-words the Act and the order was designed to curtail the freedom of press and as such violated freedom of speech and ex­pression guaranteed under Article 19 (1) (a). They contend­ed that the order interfered with their right to disseminates news and views. The court accepting the arguments of the petitioner held that the Act and the Order clearly violated freedom of speech and expression guaranteed under Article 19 (1) (a). The Order if allowed to operate would result in curtailing the freedom of the press. As freedom of press was accepted to be part of free­dom of speech and expression under Article 19 (1) (a), rea­sonable restrictions could only be imposed.

# Bennett Coleman and Co. Ltd. v. Union of India[26] , court was again asked to examine the effect of newsprint policy of the government on the circulation of newspaper. As there was a shortage of indigenous newsprint, its import was regulated by the Import Control Order 1955, issued under Sec­tion 3 and 4A of the Import and Exports Control Act 1947. The Government passed the Newsprint Control Order 1962 in exercise of its powers under Section 3 of the Essential Com­modities Act 1955. The Object of the Newsprint Control Order was stated to be to make an equitable distribution of it at a fair price. Clause 3 of the Newsprint control order placed res­trictions on acquisition, sale and consumption of Newsprint. Clause 3 (3) declared that no consumer of newsprint shall in any licensing period, consume or use newsprint in excess of the quantity authorized by the controller from time to time. Clause 3 (3A) further stated that no consumer of the newsprint, other than a publisher of text books of national interest should use any kind of paper other than newsprint except under a written permission granted by the Controller. The Central Government laid down its newsprint policy for the year 1972-73. This policy placed certain restrictions on the newspapers in utilization of newsprint. They were:

1. No newspaper or new edition can be started by a common ownership unit even within its authorized quota of newsprint.
2. Maximum number of pages is fixed at 10. No adjust­ment is allowed between circulation and the pages, so as to increase the pages.
3. No interchangeability is permitted between different papers of common ownership units in different edition of the same paper.

4.20% increase in page level up to a maximum of 10 pages has been given to papers which are having a cir­culation of less than 1,00,000/- and 3% increase in case of papers having circulation above 1,00,000/-.

The petitioners, raised the question, whether the newsprint control policy was a newsprint control or newspaper control. According to Mr. Palkhivala who appeared for the petitioners, the measure was the "Newspaper control with a degree of sub­tlety and sophistication". Rationing of newsprint is newsprint control. When once the quota is fixed it results in post quota restrictions or newspaper control.

In the instant case, the newspapers control was achieved by the measures adopted in relation to common ownership units. The common ownership units were:

a) prevented from bringing out newspapers or new editions of their dailies.

b) not permitted to have interchangeability of quota with­in their unit.

The State argued that the subject matter of the import policy was rationing of imported commodity and equitable dis­tribution of newsprint. The restrictions in fixing the page level and circulation were necessary to see that the imported news­print was properly utilized for the purpose for which it was imported. Further, the state contended that the rationing and dis­tribution of quota of newsprint and regulation of its supply was not a direct infringement of Article 19 (1) (a). The deci­sions of the United States Supreme Court in Red, Lion Broad­casting Co[27].and O'Brien,[28]were cited in the support. In Red Lions Case the court held, 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 to be regarded as a type of law which the First Amendment of the American Constitution forbade the Congress of the United States to enact. In O'Brien's case the court held that any incidental limitation or incidental restriction was permissible if the same was essential to the furtherance of important governmental in­terest in regulating speech and freedom. The Court held, that the policy of the government to limit all papers to 10 page limit was arbitrary. It amounted to treat­ing unequal’s as equals and discrimination against those who by virtue of their efficiency, standard and service and because of their all India stature acquired a higher page level. The news­print policy failed to make a distinction between big English dailies having all India circulation and small dailies having re­gional circulation with regard to the allocation of newsprint. The Government's policy to encourage small dailies cannot be allowed to strangulate the freedom of speech and expression of the big dailies. The newspaper should be left free to decide how they should adjust their newsprint, For the purpose of allotment of newsprint number of pages and volume of circulation of a news­paper may be relevant, but thereafter the newspaper should be left free to decide their page level, volume of circulation and new editions within their quota allotted fairly. Freedom of press carries with it the right to achieve any volume of circulation. The growth in circulation does not mean that there should not be growth in pages. The restrictions on newspapers that they cannot use the quota of newsprint to increase circulation would therefore violative of the Constitution. Court held that the policy of the government asking all papers to limit to 10 pages was arbitrary. Such a policy may lead to treatment of unequal’s as equals. It may discriminate against those who by virtue of their efficiency standard and service and because of their All India Stature acquired higher page level, The main source of income for newspapers is from advertise­ments. The loss of revenue because of the cut in page level is said to be over several lakhs of rupees.... The newspapers have a built in mechanism. Advertisements are not only the source of revenue but also one of the factors for circulation.

The ceiling of pages affects the economic viability of the newspaper and also restricts the freedom of expression. Ceiling of pages not only entails reduction of circulation and denudes the area of coverage of news and views but also results in 're­duction of space allotted for advertisement.69 Fall in advertise­ments makes the paper economically unviable.

# India Express Newspapers (Bombay) Pvt. Ltd v.UOI [29] The publishers of the newspapers are required to pay cus­toms duty as per the provisions of the Customs Act 1962, read with the provisions of Customs Tariff Act 1975. Further, the Finance Act of 1981, imposed an auxiliary duty of 30% adva-lorem in addition to the customs duty on the consumers of news­print. The newspapers are classified as, small, medium, and big newspapers for the purpose of the levy. The levy of these duties was challenged in Indian Express case. While the petitions were pending in the Court, the Customs Tariff Act 1975 was amended levying 40 per cent advalorem plus Rs. 1000 per metric ton as customs duty on newsprint, and the auxiliary duty payable on all goods subject to customs duty was increased to 50% advalorem. However, in view of the notifications issued under the Customs Act 1962, duty at a flat rate of Rs. 550/-per metric ton and an auxiliary duty of Rs. 275/- per metric ton were now levied. The petitioners who were companies en­gaged in the business of editing, printing and publishing news­papers and periodicals contended that the levy of customs duty and auxiliary duties had the direct effect of crippling their freedom of speech and expression guaranteed under the Con­stitution. According to the petitioners, the imposition of levy in turn lead to the increase in the price of newspapers and the inevitable consequence would be reduction in circulation. On the other hand, the government contended. that the levy of customs duty on newsprint was not strictly a levy on newsprint as such, though customs duties were levied with re­ference to goods, the taxable event was the import of goods within the customs barrier and hence there could be no direct effect on the freedom of speech and expression by virtue of the levy of customs duty on newsprint. Rejecting this contention, the Court observed:

"It cannot be denied that the levy of customs duty on newsprint used in the production of newspapers is a res­triction on the activity of publishing a newspaper and the levy of customs duties had a direct effect on that activity. There exists no analogy between Article 289 (1) and Arti­cle 19 (1) (a) and (2) of the Constitution". The Court further observed, that though the petitioners had succeeded in showing a fall in circulating they had not placed before the court the necessary data to establish that the fall in circulation may be due to a variety of factors namely, general rise in cost of living, and management of a paper, change in editorial policy, the absence of certain feature writers, etc. Similarly the government also made no effort to show the effect of the impact of the levy on the newspaper industry as a whole. It is difficult to conclude on either way, that the effect of levy was burdensome so as to infringe the freedom of press or that is not so, on the basis of the materials placed before the court. The court directed the central government to review within six months the entire question of levy of customs duty or auxiliary duty payable by the petitioners with effect from March 1, 1981. The petitioners were directed to make available to the govern­ment all information necessary to decide the question. Pend­ing re determination of the levy, the government was asked to recover only Rs. 550/- per metric ton as customs duty and auxiliary duty. The concessions made available to medium and small newspapers were not disturbed. The Court held that the classification of newspapers into small, medium and big for purpose of levying customs duty was not violative of Article 14. The distinction in the levy of duty was intended to help the small and medium newspapers to bring down their cost of production. These papers do not command large advertisement revenue. Their area of circulation is limited and majority of them are in Indian languages catering to rural section of the people. There is nothing wrong in the said classi­fication.

# Hamdard Dawakhana v. Union of India[30] In this case constitutionality of the Drugs and Magic Remedies (Objectionable advertise­ment) Act, 1954 in relation to Article 19 (1) (a) and 19 (1) (g) was considered. The Act in question was intended to pre­vent self medication and to prohibit advertisement suggesting remedies for all kinds of diseases and other matters connected therewith. The Court held:

"An advertisement is no doubt a form of speech and it is so only when it is used for propagation of ideas, social, political or economic or furtherance of literature or human thought".

The Court quoted with approval the American Supreme Court decision in Lewis J. Valentine v. F. J. Chrestensen where it was held that:

"It cannot be said that the right to publish and distribute commercial advertisements advertising individual's personal business as a part of freedom of speech guaranteed by the Constitution. Further, the constitutional right of free speech is not infringed by prohibiting the distribution in city streets of hand bills bearing on one side a protest against action taken by public officials and on the other advertising matter".

The constitutional validity of restrictions on advertisements was again considered in Sakal Papers. In this case the plea of the state that the object of Section 3 (1) of the Newspaper (Price and Page) Act 1956 in 'regulating the space for adver­tisement was to prevent unfair competition in trade was turned down. It was held that the direct and immediate effect of the Newspaper (Price and Page) Act 1956 and the Daily News­paper (Price and Page) order, was to curtail the freedom of newspapers guaranteed by Article 19 (1) (a). Similarly the plea of the state that newspapers instead of raising the prices could reduce their number of pages was rejected. It was also held that the freedom of newspaper to publish any number of pages or to circulate to any number of persons was an integral part of freedom of speech and expression.

Ushadaya Publications (P) Ltd. v. Govern­ment of Andhra Pradesh [31],The Constitutional validity of Andhra Pradesh Government order date 10-8-1979, directing all government departments, public sector undertakings and governments to release all their advertisements through Director, Information and Public Re­lations was raised. In pursuance to the government order, the Department of Information and Public Relations ado­pted guidelines to be followed for the purpose of allotment of advertisements to the newspapers. It was stated that advertise­ments were to be released so as to ensure effective and widest possible publicity. Political affiliations were not be considered in placing Government advertisements. Advertisements were not to be given to newspapers or periodicals adopting any undesirable tones. The High Court held that the government had got the right to give its advertisements to such papers as it pleases and it was not open to the petitioners to contend that, the Govern­ment by denying the Government advertisements to the paper, the freedom of press of the newspaper was violated. It further added, that it cannot be denied that while giving advertisements to various newspapers the government must do so without ex­ercising any discrimination in favour of or against any particular paper. The court quoted with approval the decision of the Supreme Court in Ramana Dayaram Shetty v. International Airport Authority of India, wherein, it was observed, "what­ever its activity, the Government is still the government and will be subject to restraints, inherent in its position in a democra­tic society. A democratic government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal". The court upheld the power of the Government to with­hold the advertisements to newspapers or periodicals adopting tones which were antinational or communal or provoking ten­sions between different sections of the society, or indulging in character assassination, black-mailing and attacks on individuals or mudslinging without proper and truthful evidence and inti­midation, of its functionaries. The government cannot be ex­pected to give advertisements to newspapers which make abu­sive or slanderous attacks on it.

However, the Court struck down the conditions in the guidelines namely "Rabid or abusive or distorting news for mischievous purpose or fomenting group rivalries and quarrels and thereby indulging in mischievous gossip mongering and sensationalism" as violative of Article 14 of the Constitution. It held, that the expression "Rabid" means raging, fanatical. It is difficult to decide whether any view expressed by the news­paper is fanatical or abusive. A newspaper may be fanatical about what it considers to be a right cause. It may be abusive against what it considers to be injurious to the society or the community. Similarly whether a newspaper distorts news for a mischievous purpose or not is difficult to determine. It is diffi­cult to say whether the way in which news is presented amounts to distortion or whether the alleged distortion is mischievous or not. Similarly, when a newspaper takes sides with a particu­lar group it is difficult to say that it does so for the purpose of fomenting group rivalries. Again views may vary, whether a news item amounts to mischievous gossip mongering and sen­sationalism according to the view of different persons con­cerned.

The press have a vital role to play in a democratic coun­try. More so in a developing country like India. Now and then the press may incur the wrath of the government when it ex­poses the wide gulf between the promises and performances of the government. At the same time it has to be remembered that the freedom is not a license to say or publish what one pleases. The courts have a duty to see that the freedom is not abused or curbed through regulations affecting circulation.
--------------------------------------------------------------------------------
[1] LIC v. Manubhai 1993SC 171.
[2] Odyssey v. Lokvidyayan 1988 SC 1642.
[3] C F Hamdard Dawakhana v. UOI (1960)2 SCR 672.
[4] Roth v. U.S (1957) 354 US 476.
[5] Bennet Colemann v. UOI 1973 SC 106.
[6] S. Rangarajan v. P.Jagjeevan Ram AIR 1989 2 SC 1421.
[7] Ramesh Thappar v. State of Madras AIR 1950 SC 124.
[8] AIR1962 SC 305
[9] Indian Express Newspapers v. UOI AIR 1986 SC 515.
[10] LIC v. Manubhai Shah (1992) 3 SCC 637.
[11] Sakal Papers v. UOI (1962) 3 SCR 842.
[12] Bennet Colemann v. UOI 1973 SC 106.
[13] Sakal Papers case.
[14] Sakal Papers case.
[15] BennetColemanns case.
[16] Indian Express case
[17] Gopal Dass v. D.M.., 1974 SC 213.
[18] Sharma v. Srikrishnan 1959 SC 395.
[19] Ramesh Thapper v. State of Madras (1950) SCR 594.
[20] Gravel v. U.S (1972 ) 408 US 606.
[21] Newyork Times v. U.S (1971) 403 US 713.
[22] Grosjean v. American Press
[23] AIR 1950 SC 124.
[24] AIR 1957 S.C 896.
[25] AIR1962 SC 305.
[26] AIR 1973 S.C 106.
[27] 395 U.S 369 (1968)
[28] 395 U.S. 367 (1969)
[29] AIR 1986 S.C 515
[30] AIR 1960 S.C. 552
[31] AIR 1981 A.P 109

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