ARTICLE 19 (1) (a): FREEDOM OF THE PRESS: Bennett Coleman & Co. v.

Union of India
Author(s): M.P. Jain
Source: Journal of the Indian Law Institute , JANUARY-MARCH 1973, Vol. 15, No. 1
(JANUARY-MARCH 1973), pp. 154-164
Published by: Indian Law Institute

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 ARTICLE 19 (1) (a) : FREEDOM Oť THE PRESS :
Bennett Coleman & Co. v. Union of India 1

ON OCTOBER 30, 1972, the Supreme Court delivered by a 4 : 1 majority

a momentous judgment having a bearing on the freedom of speech
and expression generally, and on the freedom of the press, in particular.
Article 19 (1 ) (a) of the Constitution guarantees to a citizen of
India, freedom of speech and expression. On this fundamental right,
under article 19(2), reasonable restrictions can be imposed by law in the
interest of public order, decency and morality, sovereignty and integrity
of India, security of state, friendly relations with foreign countries, or in
relation to contempt of court, defamation or incitement to an offence.2
There is no provision in the Constitution to guarantee freedom of the press
as such, nor does article 19(1) (a) specifically mention the press.3 However,
since the inception of the Constitution, the Supreme Court has taken the
view that the freedom of speech guaranteed by article 19 (1) (a) includes
the freedom of the press as well. There have been quite a few cases in
which the Supreme Court has pronounced on several aspects of the freedom
of the press. Thus, in Romesh Thappar v. State of Madras ,4 a law authoris-
ing a state government to impose a ban upon entry and circulation of a
journal within the state was held restrictive of the freedom of speech and
expression guaranteed by article 19 (1) (a), and, therefore, such a law
could be valid only if it fell within the provisions of article 19 (2).
The freedom of speech and expression, the court held, included freedom
of propagation of ideas which is ensured by the freedom of circulation
of a publication, for, without circulation a publication is of little value.
Similarly, imposition of pre-censorship on a newspaper, or prohibiting it
from publishing its own views on burning topics of the day has been held
to be a restriction of the freedom of speech and expression in Bri} Bhushan
v. State of Delhi .5 In the Express Newspapers case,6 the Supreme Court
has observed that there can be no doubt that liberty of the press is an
essential part of the freedom of speech and expression guaranteed by
article 19 (1) (a). The press has the right of free propagation and free
circulation without any previous restraint on publication. All such laws
which impose pre-censorship, curtail circulation, restrict choice of employ-
ing the editorial force, prevent newspapers from being started, or under-
mine the freedom of the press by driving it to seek government aid to

1. A.I.R. 1973 S.C. 106.

2. For detailed discussion of art. 19 (1) ( a ) and 19 (2), reference may be made
to Jain, Indian Constitutional Law 524-535 (1970), (hereinafter referred as Jain).
3. Jain at 524.
4. A.I.R. 1950 S.C. 124.
5. A.I.R. 1950 S.C. 129.
6. Express Newspapers v. Union of India , A.I.R. 1958 S.C. 578.

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1973] FREEbOM OF THE PRÉSS Í55

survive, will fall within the mischief of

Papers v. Union of Indiai 7 the Daily Newspa
1960 was held to be unconstitutional. The
the number of pages according to the price
held to violate the freedom under article 19
by article 19 (2). The freedom of a newspape
pages, or to circulate the same to any numb
the Supreme Court to bean integral part of
expression. A restraint on number of pages,
ments would affect the right under arti
advertisement is restricted, price of the pap
goes up the circulation will go down. This was held in the Sakal
Papers case to be the direct consequence of curtailment, of advertisement.
In this series of cases falls the Bennett Coleman case under review.
The Bennett Coleman case arose in the following circumstances : In
India, there is a shortage of indigenous newsprint. To fill the gap,
newsprint has to be imported from foreign countries. As India's foreign
exchange position is also not very comfortable, it is not possible to permit
a liberal import of newsprint to meet fully the requirements of the news-
papers. Accordingly, some restrictions have to be imposed on the import,
acquisition, sale and consumption of newsprint. For this purpose, it
becomes necessary to lay down some norms. The import of newsprint is
regulated by the central government under the Import Control Order,
1955, issued under the Imports and Exports Control Act, 1947. Restric-
tions on acquisition, sale and consumption of newsprint within the
country are regulated by ths central government under Newsprint Control
Order, 1962, promulgated under the Essential Commodities Act, 1955.
According to the order, no consumer, other than an importer, can acquire
newsprint except under an authorisation issued by the controller, and
no consumer of newsprint is to consume newsprint more than the
quantity authorised by the controller. No consumer of newsprint other
than a publisher of text books or general books, can use any kind of
paper other than newsprint except with the permission, in writing, of the
controller. In issuing the authorisation, the controller has to have
regard to the principles laid down in the Import Control Policy regarding
newsprint annouced by the central government from time to time. The
Import Control Policy for the year 1972-73 laid down that-
(1) The basic entitlement of individual newspapers or periodicals
for newsprint is to be determined on the basis of its actual
consumption (taking into account its average circulation, average
page area actually published) in 1970-71 or 1971-72, whichever
is less, except in case of daily newspapers whose actual number
of pages was more than an average of 10 during either of the
two base years.

7. A.I.R. 1962 S.C. 305.

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156 JO URŃAL OP ŤtíE ÌNDÌA Ñ LAW INSTITUTE [Vol. 1Ś : 1
(2) For Dailies with circulation up to 100,000 copies a 10 per cent
increase over their basic entitlement was to be granted in import-
ing newsprint, and 3 per cent increase over their basic entitle-
ment was to be granted in imported newsprint for dailies with
circulation of more than 100,000 copies.
(3) A 20 per cent increase was also to be allowed to daily news-
papers in the number of pages- within the ceiling of 10- over
the average number of pages on which the basic entitlement is
fixed under norm (1) above.
(4) With the exception of the allotment mentioned in (3) above, no
allocation of newsprint was to be made to newspapers/periodicals
on account of increase in their circulation, etc.
(5) No newsprint was to be made available for existing newspapers
belonging to a 'common ownership unit,8 which had not been
granted newsprint quota, and for additional newspaper(s)
sponsored or acquired by common ownership unit, nor were
they to be allowed to bring out new newspaper(s)/periodicals
out of the authorised quota.
It would appear that the dominant direction of the policy was
designed to curtail the growth of big newspapers. The maximum number
of pages for a newspaper was fixed at 10. The circulation of newspapers
was also sought to be restricted. No new paper or new edition of a paper
could be started by a 'common ownership unit' even within the authorised
quota of newsprint. No adjustment was allowed between circulation and
the pages so as to increase the number of pages beyond 10. No inter-
changeability was permitted between different papers of common ownership
unit or different editions of the same paper. Allowance of 20 per cent
increase in page level up to a maximum of 10 had been given to newspapers
with less than 10 pages but not to newspapers having 10 pages. In the
newsprint policy for the year 1971-72 and the earlier periods, the
newspapers and periodicals were permitted to increase the number of
pages, page-area and periodicity by reducing circulation. In the 1972-73
policy, however, big daily newspapers were prohibited and prevented
from increasing the number of pages, page-area and periodicity by
reducing circulation to meet their requirements even within their admissible
quota.
Three leading newspapers publishing concerns, Bennett Coleman &
Co., The Hindustan Times Ltd., The Indian Express (Madurai), filed writ
petitions in the Supreme Court under article 32 challenging the several
restrictions imposed on the newspapers. The newspapers represented
by these concerns were : The Times of India, The Hindustan Times,
The Indian Express and the Hindu. These concerns were joined in the
writ petitions by several readers, newspaper-editors and shareholders.

8. 'Common Ownership Unit' means a newspaper establishment or concern

owning two or more newspapers including at least one daily irrespective of the centre of
publication and language of such newspapers.

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1973] FREEDOM OF THE PRESS 157

Wide ranging arguments were rais

Import Order, the Newsprint Control
Policy. It was argued that the restrictio
tion and growth of newspapers were u
article 19(l)(tf). It was contended that t
newspapers constituted a direct infringe
pression. The refusal by the government t
circulation of their dailies, within the q
argued, was unjustified, for it should b
decide whether it should increase the
asking for any additional quota. The 19
increase only to daily newspapers whose
This, it was argued, was discriminatory
than 10 pages and thus infringed article 1
between the entitlement of newspaper
pages as compared with newspapers of
on no rational differentia for classifica
restriction was causing a reduction of
also resulting in financial loss to them, an
mental right guaranteed by article 19 (
placed on the potentiality of the news
disseminate information which was vit
The argument, in effect, was that the g
the newspapers by a subtle newsprint c
was denounced as being based on consid
the statute under which the allocation
Act. Under the Act, the policy could co
not with production, control and distr
was also challenged on the ground that
instruction in nature and had no author
On the government side, the dominan
the newsprint policy was that it did n
with the right mentioned in article 19 (l)(
to the fixation of newsprint quota for
abridgement of freedom of speech a
whether or not a restriction was reasonab
was not the 'effect' or the 'result' of th
policy ' directly and immediately ' dea
question, i.e., article 19 (l)(tf). The test
matter' and not the 'effect or the result
contended that the 'subject-matter' of
an imported commodity and equitable d
to interfere with the freedom of speech
was any hidden objective to control ne
restriction was "consequential" on the
reason that the allocation to newspa

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158 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

circulation. Newsprint was a scarce commodity and it had to be r

to enable newspapers to use it and express their views. In calculat
quota for each newspaper, the number of pages and circulation w
relevant factors. The restrictions in fixing the page level and cir
were justified on the ground that it was necessary to see that the
newsprint was properly utilised for the purpose for which the im
considered necessary. Control on the number of pages was justifie
ground that the government wanted to increase circulation so th
and more people could get the news. The policy was defended
government as being in aid of allowing small newspapers to grow
prevent a monopolistic combination of big newspapers.
The writ petitions were heard by a Bench of five judges consis
Sikri, C.J., A.N. Ray, P. Jagannath Reddy, K.K. Mathew and M
JJ. Three judgments were delivered. The majority judgment d
by Justice Ray on behalf of himself, Chief Justice Sikri and Justi
declared the Newsprint Control Policy as unconstitutional under
19 (l)(a) and 14. Justice Beg in a separate judgment concurred
majority. Justice Mathew alone supported the policy in question.
Two points raised on behalf of the government against consid
of writ petitions by the court may first be noted before going into th
of the controversy. Firstly, it was argued that the petitioners w
panies, and could not, therefore, claim the fundamental rights und
19 (i)(a) as had been held earlier by the court in the State Tr
Corporation case,9 and the Tata Engineering and Locomotive case.
court did not have much difficulty in rejecting the objection. It h
the relief was being claimed not only by the companies but by shar
editors and newspaper readers as well, and there are a number of
cases where relief has been granted in such circumstances, to
Express Newspapers case11 and the Sakal Papers case.12 In th
Nationalisation case,13 the petitions were filed under article 3
banking companies, a shareholder, a director and a holder of curren
deposits under article 19 (l)(tf) in a bank to challange the constit
validity of the Banking Companies (Acquisition and Transfer of U
takings) Act, 1969. The petitions were held to be maintainabl
case as the rights of the shareholders as well as of the compan
involved. In the light of these ealier pronouncements, the petition
instant case were also held to be maintainable as the rights not on
newspaper companies but also of the editors, newspaper read
shareholders who were joined in the petitions, were involved unde
J 9 (l)(tf). On this point the majority judgment has this to say :

9. State Trading Corporation v. Commercial Tax Officer , A.I.R. 1963 S.C

10. Tata Engineering v. State of Bihar , A.I.R. 1965 S.C. 40, On this as
the matter see Jain at 466-8.
11. Supra note 6.
12. Supra note 7.
13. * .C. Cooper v. Union of India, A.I.R. 1970 S.C. 564,

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1973] FREEDOM OF THE PRESS 159

In the present case, the individual

and expression of editors, Directo
exercised through their newspaper
The press reaches the public th
shareholders speak through thei
companies are the petitioners does
giving relief to the shareholders,
asked for protection of their fund
the effect of the law and of the
locus standi of the shareholder pe
after the ruling of this Court in t
The presence of the company is on
the grant of relief.14

It would thus appear that much o

Trading Corporation case on the fun
been neutralised or diluted by the S
Papers case ; the Bank Nationalisat
appears that writ petitions can be fi
by the affected individuals to invoke t
the citizens by the Constitution. In
Supreme Court had stated that "if th
shareholders as well as of the Compa
merely upon the technical operation
to grant relief."15
Another objection raised by the go
the writ petitions was that since a pr
352 was in force and since article 19 wa
petition to challenge the Newsprint
under article 19(l)(tf) could be broug
this contention also by saying that th
of the old newsprint policy which ha
for a decade till the proclamation of
the court's earlier pronouncements,17 i

Article 358 does not apply to exec

emergency if the same is a contin
action or an emanation of the p
executive action or previous law w
Article 19 or be orther wise unconst

14. Supra note 1 at 115.

15. Supra note 13 at 585.
16. On emergency, see Jain at 394-406.
17. District Collector , Hyderabad v.
State of M.P. v. Thakur Bharat Singh , (1
18. Supra note 1 at 116.

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160 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

The majority observed further on this point :

Executive action which is unconstitutional is not immune dur
the proclamation of emergency. During the proclamation
emergency Article 19 is suspended. But it would not author
the taking of detrimental executive action during the emerge
affecting the fundamental rights in Article 19 without any legis
lative authority or in purported exercise of power conferred
any pre-emergency law which was invalid when enacted.39
On the merits of the controversy, the Newsprint Control Po
been held to be void in the majority judgment delivered by Ju
The court conceded the right of the government to import newsprin
control the distribution thereof provided that it is fair and equ
the interests of big, medium and small newspapers are taken into
tion in allotting quotas;. But, in view of the majority, in th
regulating distribution of newsprint, the government had sought
the growth and circulation of newspapers. In effect, the 'newspr
became a 'newspaper' control policy. Rationing of newsprin
'newsprint' control. That is where a quota is fixed. 'Newspape
can be said to be post-quota restrictions. The freedom of the pre
Ray has stressed, is both 'qualitative' and 'quantitative' ; the
guarantees both 'circulation' and 'content'. The newspapers must
free to determine their pages, their circulation and their new edition
their quota of what had been fixed fairly. Accordingly, the res
which constrict the newspapers in adjusting their page number an
tion must be struck down. The restriction fixing the 10-page li
held void. The distinction drawn between newspapers with c
over and under 1 lac copies as regards increase in basic entitlem
he'd to be discriminatory under article 14 and so void. The p
agiinst common ownership unit from starting a new newspaper/
or a new edition was also struck down.
The government had invoked the 'pith and substance' test to uphold
the validity of the import policy. It was argued that one method of
controlling import is to regulate the use and disposition of the goods after
they are bought. It was also argued that the newsprint policy's subject-
matter was not freedom of speech but rationing of imported commodity.
It was argued that the test to adjudge the validity of a regulatory provision
was ťsubject-matter' and not its "effect or result". The majority, however,
held that the tests of "pith and substance", of the subject-matter and direct
and incidental effect of legislation were relevant to questions of legislative
competence but were irrelevant to the questions of fundamental rights.
The majority enunciated the test whether the 'effect' of the impugned action
is to take away or abridge fundamental rights. A legislation or govern-
ment action may have a direct effect on a fundamental right although its
direct subject-matter may be different. The object of the law or executive

1?. Ibid,

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1973] FREEDOM OF THE PRESS 161

action is irrelevant when it infringes a f

In the instant case, the object of
newspapers by way of control on the
newspapers had nothing to do with the
exchange because these restrictions cam
the quota, and these fell outside art
freedom under article 19 (l)(tf) was vio
of pages to be printed by a newspap
restriction on advertisements, prohibi
editions. The effect and consequenc
was directly controlling the grow
Commenting on that aspect of the pol
papers with less than 10 pages would
basis of consumption during 1970-7
majoriy held that this aspect of the po
of a newspaper in any one of the years a
of newspapers. As regards papers hav
a substantial cut in their pages and br
source of income for newspapers was f
were also one of the factors for circul
number, apart from depriving them o
their views, the area of advertisem
financial loss to the newspapers and
affected.20 The policy of limiting all
English or an Indian language, to 10 p
treated unequals as equals and was dis
virtue of their efficiency, standard an
stature, had acquired a higher page le
base-year to determine quotas. The ma
increasing pages at the cost of circula
requirements of different dailies may
cases to increase the number of pages
The court's view was that while
allowed to grow, the English dailies sh
a policy of regimentation. The restrict
cut at the very root of the guaranteed
the number of pages or circulation of
within article 19(2).
Justice Beg held the import policy b
restrictions on the actual mode of user
publication of information or views w
Hence, he held that it was not necess
imposed were reasonable eithpr under
Justice Mathew alone supported th

20. The Sakal Papers case, supra note 67

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162 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 15 : 1

newsprint was scarce in the country and it has, therefore, to be ratione

The freedom of speech does not mean that newspapers can obtain an
amount of newsprint. He took the view that it would be an integral pa
of any system of rationing to tell the consumer that it should maintain t
page level and circulation of the paper. According to him, any curtailme
of speech occasioned by rationing of newsprint due to its scarcity can on
affect freedom of speech indirectly and, consequently, there would not
any abridgment of it.
The judgment given by the Supreme Court will go down as a land-
mark in the history of citizens' civil rights in India. A democratic societ
can thrive on freedom of speech of the people. Newspapers are an integr
part of a democratic society. There is no doubt that the Newspri
Control Policy was designed, apart from ensuring a fair distribution of t
imported newsprint, also to achieve certain broad social objectives, viz.,
restrict the .growth of big newspapers and to promote the growth of sm
newspapers. No one will deny the need to promote small newspapers but
will have to be done now without infringing the fundamental rights of t
big newspapers. In a free and democratic society, there should be as fe
restrictions on the freedom of speech and expression as possible and th
is th3 result which the Supreme Court's decision seeks to achieve.
would be wrong to conclude that the decision makes any scheme o
rationing of imported newsprint impossible to effectuate. During the cou
of the arguments, it was suggested several times from the Bench that on
the newsprint had been allocated among the newspapers on a reasonable
basis, there should be no undue control over its subsequent use. Aft
the allotment, newspapers should be free to use it in the way they like.

In the majority judgment, this idea is conveyed in the following words:

In our view shortage of newsprint can stop with allotment. If

the Government rests content With granting consumers of
newsprint a quantity equitably and fairly, the consumers will
not quarrel with the policy.21

From a purely legalistic point of view, the main question of interes

arising out of the case is the unequivocal rejection by the court of the t
of 'subject-matter' of a provision to adjudge its violation of a fundament
right. As is evident, the Supreme Court used this test in the Gopala
case22 in order to uphold the validity of the Preventive Detention A
against a challenge under article 19(1) (a). It was stated therein th
article 19 can be invoked only when a legislation was 'directly' in respe
of any of the matters covered by that article. If, however, a legislation
was not directly in respect of any of the matters covered by article 19, b

21. Supra note 1 at 123 .

22. A.K. Gopalan v. State of Madras , A.ĻR. 1950 S.C. %1.

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1973] FREEDOM OF THE PRESS 163

as a result of the operation of other leg

was infringed, then article 19 cannot be
again in Ram Singh v. Delhi.23 Similar
Court in the Hamdard Dawakhana 24 ca
But then there have been cases where
It has instead taken into considerati
regulation but the 'direct effect or c
Papers case, the Daily Newspapers (P
bad as its effect was to curtail the fre
to accept the government's contention tha
the commercial aspects of the newspaper i
must be adjudged under article 19(6). T
case, the Supreme Court had laid down two tests to adjudge the
constitutionality of a law under a fundamental right : (1) It is not the
object of the authority making the law impairing the right of the citizen nor
the form of action that determines the invasion of the right. (2) It is the
effect of the law and the action upon the right which attracts the jurisdic-
tion of the court to grant relief. 'The direct operation of the Act upon
the rights forms the real test.' By direct operation is meant the direct
consequence or effect of the Act upon the rights. It is the substance of
the Act and its practical result which should be considered rather than the
pure legal form. This is the test applied in the instant case. What is the
direct consequence of the restriction ? Does it infringe a fundamental
right ? The test of 'subject-matter' is thus substituted by the test of
'direct effect'. Needless to say that there may arise a difference of opinion
on the question whether the 'consequence' of a provision on a fundamental
right is 'direct' or 'indirect'. This 'dichotomy' is brought out in the
judgments of majority and Justice Mathew.
It has been the pronounced objective of the central government to
reduce the influence of big newspapers which are associated by big comm-
ercial houses. Steps taken to achieve this result through the Import Control
Policy have failed. This, however, is a very sensitive area as the instant
case has shown. The government will have to be wary and cautious in
planning its strategy to achieve its objective lest it should founder on the
rock of freedom of speech and expression.
As a sequel to the instant case, the Government of India has now
revised the newsprint allocation policy for 1972-73. Under the revised
policy, the entitlement of newsprint of a newspaper is based on its utilisation
of authorised newsprint in 1971-72, and newspapers will be free to use their
authorised quota for increasing their circulation or pages or both. There
is no page ceiling for determining entitlement. Each newspaper or periodical
will be regarded as the recipient of quota and interchange of quota

23. A.I.R. 1951 S.C. 270 ; see also Jain at 574.

24. Hamdard Dawakhana v. Unipn of India , A.I.R. 1960 S.C. 554.

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1 64 JO URN AL OF THE INDIA N LAW INSTITUTE [Vol. 15:1

between newspapers is prohibited. However, a new edition of an ex

newspaper can be brought out from within the newspaper's autho
quota, per publishing day.
The initial quota for new newspapers - dailies, weeklies, fortnig
and monthlies - will be worked out on the basis of a maximum circulation
of 3,000 copies and eight standard size pages.

M.P. Jain *

♦Professor of Law, University of Delhi, and Profes$or-in-charge, Evening Law

Centre, New Delhi.

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