Judges: S.M. Sikri, C.J., K.K. Mathew, M. Hameedullah Beg, P. Jaganmohan Reddy and A.N. Ray, JJ.

Facts:

Newsprint imports were restricted by the Import Control Order, 1955 (ICO), which the Central Government approved in accordance with Sections 3 and 4A of the Imports and Exports Control Act, 1947 (IEC Act). Newsprint was also subject to supervision under Section 3 of the Essential Commodities Act, 1955 (ECA) since it was an essential commodity.

Section 3 of the ECA allowed for the passage of the Newsprint Control Order, 1962 (NCO). According to clause 3(3) of NCO, no newspaper user may use or consume more newsprint during any licence term than is permitted by the Controller from time to time.

According to clause 3(3A) of NCO, no consumer of newsprint, other than a publisher of text books of public interest, may use any type of paper other than newsprint without the Controller's prior written consent.

Clause 3(5) of NCO stipulates that when providing an authorization under this paragraph, the Controller shall take into consideration the guidelines in the Import Control Policy with respect to newsprint issued from time to time by the Central Government.

In present petitions filed under Article 32 of the Constitution, the newsprint policy for 1972-1973 was contested in Supreme Court.

Issues:

(i) Whether the petitioners being companies could invoke fundamental rights?

(ii) Whether Article 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights?

(iii) Whether the restriction on newsprint import under the ICO, 1955 was violative of Article 19(1)(a) of the Constitution?

(iv) Whether the newsprint Policy fell within Clause 5(1) of the ICO, 1955 and was valid?

(v) Whether Clause 3(3) and 3(A) of the NCO, 1962 were violative of Articles 19(1)(a) and 14 of the Constitution?

(vi) Whether Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Articles 19(1)(a) and 14 of the Constitution?

Laws:

Constitution of India - Article 14 - Guarantees equality before the law or equal protection of the laws to all persons, within the territory of India.

Constitution of India - Article 19(1)(a) - Guarantees the citizens of India freedom of speech and expression.

Constitution of India - Article 32 - Guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution.

Essential Commodities Act, 1955 - Section 3 - Prescribes powers to control production, supply, distribution, etc., of essential commodities. It allowed for the passage of the NCO.

Newsprint Control Order, 1962 - Clause 3(3) - No newspaper user may use or consume more newsprint during any licence term than is permitted by the Controller from time to time.

Newsprint Control Order, 1962 - Clause 3(3A) - No consumer of newsprint, other than a publisher of text books of public interest, may use any type of paper other than newsprint without the Controller's prior written consent.

Newsprint Control Order, 1962 - Clause 3(5) - When providing an authorization under this paragraph, the Controller shall take into consideration the guidelines in the Import Control Policy with respect to newsprint issued from time to time by the Central Government.

Contentions:

Petitioner

(i) Petitioner's right to free speech and expression through their editorial staff and the medium of publications is restricted as a result of the Newsprint Control Policy of 1972-1973.

(ii) Because Article 358 of the Constitution does not apply to legislation or executive actions made before the emergency declaration, it is not applicable.

(iii) The newsprint policy was a continuation of the former newsprint policy, which had started earlier and had been in place from year to year for ten years up to the declaration of emergency in 1971.

(iv) Whether or not the Newsprint Control Policy is a newspaper control. A newspaper control policy violates both the Import Control Act and the Import Control Order. Entry 19 List 1 of ICO, 1955 grants Parliament the potential authority to regulate imports.

(v) Instead of enhancing circulation, the Remark V policy will cause it to decrease.

(vi) The average page level of the major English and language daily would drop to 9.8 if the maximum numbers of pages were set at 10, and their page level would more or less match that of the medium dailies, whose needs are substantially lower.

(vii) It suggests a rejection of a fair distribution and demonstrates an unreasonable treatment of dailies to compare the large English dailies, which are in a class by themselves, with other dailies that need fewer than 10 pages.

(viii) Although the real circulation does not match the allowed circulation on which the quota was based year after year, the quota is nonetheless provided based on notional circulation, which is the actual circulation of 1961-1962 with allowable increases year after year.

(ix) The government was unable to decide which newspapers should increase in both page views and circulation, and which should just increase in circulation.

(x) Common ownership units were prohibited from changing the newsprint quota given to each of them in accordance with the second limitation in Remark VIII of the Newsprint Policy.

(xi) The Central Government-Newsprint Policy was invalid because it did not comply with Clause 5(1) of ICO, 1955.

Respondent

(i) Since the petitioners were companies, they would be unable to claim fundamental rights.

(ii) Any claim of fundamental rights violations by the petitioners must comply with Article 358 of the Constitution.

(iii) According to Article 358 of the Constitution, nothing in Article 19 shall limit the State's ability to enact laws or carry out executive actions that it would be competent to do absent the provisions of that Part. This includes when a declaration of an emergency is in effect. Therefore, petitioners were not permitted to contest the 1972-1973 Newsprint Policy while the state of emergency was in effect.

(iv) Newsprint use and importation were not common law rights. This right is protected by various laws. Petitioners would have to comply by the rules set out if they requested a newsprint quota. Reference may be made to the Imports and Exports Act of 1947, ICO, 1955, ECA, 1955, and NCO, 1962. Article 19(1)(a) of the Constitution would not grant the press any particular basic rights.

(v) The right specified in Article 19(1)(a) of the Constitution is not directly and immediately addressed by the newsprint policy. As long as there is no abridgment of fundamental rights, a legislation that just governs even directly press freedom is acceptable. The commercial side of the press had no particular exemption, and the accidental restriction on circulation could not be considered a violation of press freedom.

Analysis:

Petitioners being companies could invoke fundamental rights

(i) When shareholders get together to create a firm, their fundamental rights as citizens are not compromised. Their core shareholder rights are safeguarded when government action jeopardises such rights. The argument is that if the rights of the corporation are impacted, then the rights of the shareholders must also be affected in an equal and necessary manner. The newspapers that the shareholders own and manage via the medium of the Corporation, project and make visible their rights under Article 19(1)(a) of the Constitution.

(ii) The editors, directors, and shareholders in this case all use their own publications as platforms for their individual rights to free speech and expression. With this Court's decision in the Bank Nationalization case (Rustom Cavasjee Cooper vs. Union of India (UOI) MANU/SC/0011/1970) with respect to the shareholder petitioners' locus standi is unquestionable. The company's inclusion in the same judgement does not prevent relief from being granted.

Article 358 of the Constitution does not apply to executive action taken during the emergency

(i) Petitions that were originally submitted to contest the Newsprint Policy for 1971-1972 and then amended to contest the 1972-1973 policy. The old policy was maintained by the impeached policy. If the emergency executive action represents a continuation of a former executive action or an outgrowth of a prior statute that would otherwise violate Article 19 or be unconstitutional, then Article 358 of the Constitution does not apply to that emergency executive action.

(ii) When an emergency is declared, executive action that violates the constitution is commonplace. The declaration suspends Article 19 of the Constitution. However, it would not permit executive action that would be harmful to the fundamental rights protected by Article 19 of the Constitution to be taken without legislative approval. Same is also not permissible in the alleged execution of any pre-emergency law's powers that was unconstitutional at the time it was passed.

Restriction on newsprint import and the impugned newspaper policy was violative of Articles 14 and 19(1)(a) of the Constitution

(i) It is impossible to dispute the government's authority to import newsprint.

It is also impossible to dispute the government's authority over newsprint distribution. Fair and equal distribution must be made. When allocating quotas, the interests of all newspapers - large, medium-sized, and small - must be taken into account.

In this instance, there was some debate over whether import of newsprint should increase. Government policy governs this.Such policy measures cannot be decided by this Court unless the policy is claimed to be malafide.The Court was also prohibited from discussing the controversy surrounding the accessibility of indigenous paper for publishers.

(ii) The Cabinet decision gave the go-ahead for the publication of the 1972- 1973 news print policy. Therefore, the policy was lawfully implemented.

The freedom of speech and expression includes the right for a newspaper to publish any number of pages and to distribute it to any number of people. By imposing restrictions on it or anything that is a crucial component of that freedom, this freedom is violated.

(iii) Limitations on page count, circulation, and advertising would violate Article 19(1)(a) protection's of fundamental rights in terms of dissemination, publishing, and circulation. The effect and result of the contested policy on newspapers is that it directly controls their expansion and circulation.

The restriction on newspaper circulation is the direct result. The expansion of newspapers via pages is directly impacted. Newspapers lose their space for advertisements as a direct result. They are susceptible to financial loss as a direct result. The immediate result is a restriction on the right to free speech and expression.

(iv) It is not acceptable to adopt the idea of regulating fundamental rights using American court rulings. Unlike our Article 19(2) of the Constitution, the American First Amendment does not contain any exclusion.

The right of the press to freedom of expression has been recognised by this court. This freedom cannot be restricted or taken away in the way that the contested policy has.

(v) The Import Control Act and the Import Control Order are violated by a newspaper control policy. It is not possible to use the mechanisms of import control to restrict or regulate the freedom, expansion, or circulation of newspapers in India. When determining whether an Act inadvertently infringes upon another Entry, the pith and substance doctrine is applied. Such a query is not raised in this instance.

The Newsprint Control Policy has been shown to be a newspaper control order masquerading as a newsprint import control policy. The right of every citizen to talk, write, and publish is known as press freedom. The right of the public to read is embodied by press freedom. The right of the public to talk and express themselves does not conflict with journalistic freedom.

The current case's page limit fixation will not only deprive the petitioners of their ability to support themselves financially. It will also limit the freedom of speech due to the compulsive page reduction that reduces circulation and demands the area of coverage for news and opinions. Newspapers will be unable to disseminate news and opinions if, as a result of the page decrease, advertising becomes their primary source of revenue.

Additionally, they will lose their right to free speech and expression as a result. However, if newspapers are forced to forgo ads due to page limits, weakening their ability to withstand financial pressure, the Organization may fail.

The loss of ads may result in more than just a closure. It might also have an impact on circulation, which would limit the freedom of speech and expression.

(vi) The impeached policy violates Article 14 of Constitution. This is due to the fact that when determining the wants and requirements for newsprint, it treats newspapers that are not equal similarly. The establishment of the 10 page restriction and claim to quota on that basis disadvantages the seven newspapers that were operating beyond the 10 page level. There is no intelligible differentia.

Remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Articles 19(1)(a) and 14 of the Constitution

(i) Because the quota is restricted by a directive not to increase the page number over 10, the basic claim to a quota in Remark V for newspapers operating above the 10 page threshold contradicts Article 19(1)(a) of the Constitution. Articles 19(1)(a) and 14 of the Constitution are both infringed by lowering the page limit to 10 for the aforementioned reasons.

(ii) According to Remark VII(C), newspapers with a maximum of 10 pages will see a 20% rise in the number of pages. The circulation is more important than the page count. The rule prevents them from being circulated.

The major English newspapers are not allowed to raise their page counts. Other newspapers that do not require page increases are given permission to expand their quota, but they are not given the ability to circulate. This is newspaper control rather than control over newsprint.

(iii) Discrimination is clear from Remark VII of the newsprint policy for 1972-1973. It was stated that newspapers with circulations under 100,000 received a 10% rise while those with circulations of 100,000 or more received a 3% increase.

(iv) Remark VIII's first paragraph forbids page increases by limiting circulation. It used to be possible to modify the spacing between pages and circulation. In certain instances, it is immensely desired to expand the amount of pages rather than circulation due to the unique requirements of various daily. It is true that the quality, scope, and standard of the daily press as well as press freedom are hampered by the restriction of this flexibility or modification. Big dailies are considered on a same footing with newspapers, which is against Article 14 of the Constitution.

(v) The second restriction in Remark VIII forbade joint ownership units from allocating one other's newsprint quotas. The usage of one newspaper's allotment of newsprint for another newspaper in the same joint ownership unit is forbidden. Each paper has a certain amount of newsprint. The receiver is regarded as the newspaper. If common ownership units are permitted to change quota within their group, it will hurt a single newspaper.

(vi) A common ownership unit might publish a newspaper or begin a new issue of an existing publication under Remark X, even with the quota allotted to them. Preventing a common ownership unit from beginning a new edition or a new newspaper is a restriction on the right to free speech.

A common ownership unit can utilise the given quota to change the page layout and circulation of multiple editions of the same publication. A common ownership unit should be free to launch a new edition out of their allotted quota. However, newspapers are not allowed to use their assigned quota to launch a new publication. Newspapers will need to submit the proper paperwork in order to request a quota in that regard. The decision to process the application in conformity with the law shall be up to the relevant authorities.

(vii) The Press is not at risk from any monopolistic combination harm. The newsprint policy is not an anti-monopoly measure. The newsprint policy should grant newspapers the level of freedom of speech and information. This shall suitably enable the people of the society to keep their political expression of remark on both public affairs and the broad variety of ideas and subjects necessary for a free society.

(viii) As a consequence, because they violate Articles 14 and 19 (1) (a) of the Constitution, the provisions in Remarks V, VII(a), VII(C), and VIII of the Policy must be declared unconstitutional. Remark X's ban on a common ownership unit beginning a new newspaper periodical or a new edition is illegal and invalid since it violates Article 19(1)(a) of the Constitution.

Justice K.K. Mathew (Dissenting)

(i) The basic right to freedom of expression is guaranteed to people under Article 19(1)(a). Article 19(2) of the Constitution lists the kind of limitations that may be imposed by law. This does not imply that restrictions on speech that may not amount to abridgment are not possible.

Saying that speech cannot be limited or that any restriction of speech would be a reduction in the right to free speech is a complete fallacy. No freedom, no matter how complete, can be unfettered.

(ii) There is no abridgment of free speech if, due to a shortage of newsprint, it is not possible, on an equitable distribution, to allot to the petitioners newsprint to the extent required to maintain the current circulation of the newspapers or their page level must be reduced. There is little doubt that the declining supply of newsprint is the primary cause of the decrease in page count or circulation. However, it cannot be said that the petitioners' freedom of speech has been restricted. There may be a restriction on speech, but not on the right to free speech.

(iii) Although not exactly suitable, the pith and substance test may be helpful in determining if the laws in question, which interfere with speech in certain ways, are primarily regulatory in nature.

(iv) It cannot be argued that the concept used for newsprint distribution is not for the greater benefit. Apart from that, one of the goals of the Newsprint policy was to eliminate the disparity brought about by the previous regulations. It intended to give daily with fewer than 10 pages the opportunity to operate on an equal footing with those with 10 or more pages.

Remark VII provision of a 20% rise for page level growth is based on a classification. That classification is based on an understandable differentia with a connection to the goal that is being pursued.

(v) If a consumer's right to newsprint is determined by the number of pages and circulation of the newspaper, telling the consumer that he should maintain the number of pages and circulation of the paper would be an essential component of any rationing scheme. Clause in Remark VIII does not mandate that a newspaper's owner or publisher lower circulation.

The sole directive now in force is to "keep the circulation at the present level or enhance it if you wish by decreasing the page level", according to the newspaper's owner/publisher. It would have been against the law to allow for such a restriction on the right to free expression.

(vi) A policy for the distribution of newsprint to maintain circulation at its highest level while furthering the right of the community to hear will only advance and enrich that freedom in accordance with the theory of free speech. It recognises not only the right of citizens to speak but also the right of the community to hear.

(vii) It is unclear how the petitioners' basic right to free speech would be violated by the fixing of a maximum page level of 10 for the computation of the newsprint limit.

Article 19(1)(a) of the Constitution is not the 'guardian of infinite talkativeness', nor does it imply a right to purchase or use an endless amount of paper.

(viii) Commercial advertising does not fall under the protection of the right to free expression provided by Article 19(1)(a) of the Constitution. There would not be any abridgment of freedom of expression as a result of the speech restrictions brought on by the limitation of newsprint owing to its shortage.

(ix) The quota is allocated to the printer or publisher of each newspaper held by a common ownership unit, who is a distinct consumer. Each newspaper is allocated quota based on the information provided in the application for quota submitted by the common ownership unit. This information also states the entitlement of each newspaper it owns.

The entire idea of rationing would be defeated if a common ownership unit was allowed to utilise the quota set for one newspaper owned by it for another newspaper or for a different edition of the same daily. Interchangeability prohibition is unrelated to Article 19(1)(a) of the Constitution.

(x) There is a legitimate distinction between an individual who owns no newspapers and a common ownership unit that owns two or more newspapers. Nobody should be denied the chance to express themselves through the medium of a newspaper.

The right protected by Article 19(1)(a) primarily includes an individual component. The media of two or more newspapers have previously offered a shared ownership unit the chance to express itself.

It would lead to a concentration of newspaper ownership and speed up the trend toward monopoly in the newspaper sector if a common ownership unit continued to buy or sponsor new publications. This would also happen if the claim for quota for all the newspapers were to be accepted. Since there is a finite amount of newsprint that can be distributed, every system of rationing must impose certain restrictions on the freedom of the press.

(xi) The Chief Controller of Imports and Exports issued the newsprint policy, and the Additional Secretary to Government had signed it. Both Houses of Parliament were presented with the newsprint policy. Even while it had an administrative nature, it was nonetheless capable of establishing rights and obligations.

Newsprint is an "essential commodity" according to Section 2(vii) of ECA. The government is, therefore, authorised to enact an Order regarding its use. This authority is granted under Section 3 of ECA. Article 14 of the Constitution was not violated by Clauses 3(3) and 3(3A) of ICO, 1955.

Conclusion:

(i) Petitioners being companies could invoke fundamental rights.

(ii) Restriction on newsprint import and the impugned newspaper policy was violative of Articles 14 and 19(1)(a) of the Constitution.

(iii) The freedom of speech and expression was impacted by several limitations and laws on publications.

(iv) The Newsprint Policy was unconstitutional because its quantitative limits were not justified by a lack of newsprint since press freedom encompassed both qualitative and quantitative elements.

(v) The Import Control Order and the Newsprint Order were not declared unconstitutional.

Important Precedents:

(i) Express Newspapers (Private) Ltd. and Anr. vs. The Union of India (UOI) and Ors. MANU/SC/0157/1958

(ii) Sakal Papers (P) Ltd. and Ors. vs. The Union of India (UOI) MANU/SC/0090/1961

(iii) Romesh Thappar vs. The State of Madras MANU/SC/0006/1950 (iv) Chiranjit Lal Choudhuri v. The Union of India and Ors. MANU/SC/0009/1950

(v) State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam MANU/SC/0038/1963

(vi) Tata Engineering & Locomotive Co. v. State of Bihar MANU/SC/0036/1964

(vii) Hamdard Dawakhana and Anr., vs. The Union of India (UOI) and Ors. MANU/SC/0016/1959