FACTS OF THE CASE

As per the matter of facts, the petitioners were working as media conglomerates indulged in
the publication of newspapers. The group of petitioners constitutionally challenged the
restrictions imposed on the import of newsprint under “Import Control Order 1955” and this
same manner has been applied by the newspapers under the Newsprint Order 1962. Further,
in 1972-73 the validity of import policy of Newsprint and news pint control order 1962, was
constitutionally challenged. Because these two policies had imposed further restrictions
rooted on four incumbent features:-

1. A new newspaper could not be started by any establishments which owning more than
two newspapers if at least one of which is daily;
2. The maximum no of newspapers published shall not exceed 10%.
3. No of a newspaper may not be increasing, more than 20% that are under ten pages;
4. The interchangeability of newsprint had not allowed between different editions of the
same paper or distinct newspapers of the same establishment and agencies.

The government contended that by doing this, the reputed or large newspaper agencies
monopoly would end up in the market and on the other hand, it would be beneficial for the
small newspaper agencies to grow in the market. Although, a lot of big newspaper agencies,
their maximum portion of newspaper contain advertisement only. The news limits were very
low in the newspaper. So at that time, it was thought that by reducing page limit, the big
newspaper agencies have to publish their advertisement within the limit of 10 pages. And,
this would not be affected in the publication of news. However, the petitioners were not
permitted to make harmony in circulation, etc., under the newsprint policies even within the
quota limit. This was constitutionally challenged for violation of ARTICLE 14 and
ARTICLE 19(1) (a) of the Indian Constitution.

The petitioner challenged the restriction made by the government on the import of newsprint
under Import Order 1955; the regulation of sale, acquisition and, use of newsprint under the
Newsprint Order 1962; and the direct regulation of size and circulation of newspapers under
the Newsprint Policy of 1972-73 orders are unconstitutional.
 ISSUES RAISED

1. The preliminary question was whether the petitioners were being companies could
contravene the fundamental rights?
2. Whether Art. 358 of the Indian Constitution was a moratorium to any challenge by the
petitioner’s side on the violations of fundamental rights?
3. Whether the restriction imposed on newsprint import under the 1955 Order was the
violation of Art. 19(1) (a) of the Constitution?
4. Whether the newsprint Policy fall within the Section 5 (1) of the Import, Control
Order 1955 was valid or not?
5. Whether Clauses 3 and 3A of Section 3 of the Newsprint Order, 1962 were violative
of Article 14 and Article 19(1) (a) of the Constitution?
 ARGUMENTS RAISED

Petitioner’s Arguments

1. The petitioners contended that as a result of the Newsprint Control Policy of 1972-73
their freedom of speech and expression exercised through their editorial staff and
through the medium of publications is infringed.
2. Counsel on behalf of the petitioners contended that Article 358 is inapplicable
because it has no application to the law or executive action taken prior to the
proclamation of emergency. The Newsprint Policy was said by the petitioners to be a,
continuation of the old newsprint policy which had originated earlier and continued
from year to year for a decade till the proclamation of emergency in 1971.
3. The petitioners raised a question as to whether the Newsprint Control Policy is a
newsprint control or a newspaper control.
4. The question neatly raised by the petitioners was whether the impugned Newsprint
Policy is in substance a newspaper control. A newspaper control policy is ultra vires
the Import Control Act and the Import Control Order. Entry 19 of List 1 of the 1935
Act could empower Parliament to control imports.
5. The Petitioners contend that the policy in Remark V instead of increasing circulation
will result in the reduction of circulation.
6. The petitioners, therefore, contend that if the maximum number of pages is fixed at 10
the average page level of the big English and language dailies would come down to
9.8 and their page level would become more or less equal to the page level of medium
dailies whose requirements are much less.
7. The petitioners therefore emphasise that to equate the big English dailies which are in
a class by themselves with other dailies which need less than 10 pages indicates
negation of an equitable distribution and proves irrational treating of dailies.
8. The petitioners say that quota is not granted on the basis of actual circulation but is
granted on the basis of notional circulation which means the actual circulation of
1961-62 with permissible increases year after year even though the actual circulation
does not correspond to the permissible circulation on which the quota was based year
after year.
 9. Counsel for the petitioners rightly said that the Government could not determine
which newspapers should grow in page and circulation, and which newspapers should
grow only in circulation and not in pages.
10. Counsel for the petitioners contended that the second prohibition in Remark VIII in
the Newsprint Policy prevented common ownership units from adjusting between
them the newsprint quota allotted to each of them.
11. Mr. Nambiar contended that the Newsprint Policy did not fall within clause 5(1) of
the Import Control Order 1955 and it was not validly made by the Central
Government-petitioner

Respondent’s Arguments

1. Article 358 of the Constitution was invoked by the Additional Solicitor General to raise
the bar to the maintainability of the petition. Under Article 358 while a proclamation of
an emergency is in operation nothing in Article 19 shall restrict the power of the State to
make any law or to take any executive action which the State would but for the provisions
contained in that Part be competent to make or to take. It was, therefore, said on behalf of
the Government that the petitioners could not challenge the 1972- 73 Newsprint Policy
during the proclamation of emergency.
2. The Additional Solicitor General contended that the right to import and utilise newsprint
was not a common law right. It was said to be a special right covered by several statutes.
The Imports and Exports Act 1947, the Imports Control Order, 1955, the Essential
Commodities Act 1955 and the Newsprint Control Order 1962 were referred to in support
of the proposition that if the petitioners asked for a quota of newsprint they had to abide
the conditions prescribed. It was also said that the Press would have no special
fundamental right under Article 19 (1) (a).
3. The Additional Solicitor General contended that the newsprint policy did not violate
Article 19 (1) (a). The reasons advanced were these:
 The newsprint policy does not directly and immediately deal with, the right
mentioned in Article 19 (1) (a).
 The test of violation is the subject matter and not the effect or result of the
legislation.
  If the direct object of the impugned law or action is other than freedom of
speech and expression Article 19 (1) (a) is not attracted though the right to
freedom of speech and expression may be consequentially or incidentally
abridged.
4. The Additional Solicitor General further put emphasis on the pith and substance of the
Import Control Act to control imports and exports for these reasons. The decision in
Abdul Aziz Amiudin v. State of Maharashtra was referred to indicate that the scope of
control of import extended to every stage at which the Government felt it necessary to see
that the goods were properly utilised.
5. The Additional Solicitor General contended that a law which merely regulates even
directly the freedom of the press is permissible so long as there is no abridgment or taking
away of the fundamental rights of citizens. He leaned heavily on American decisions in
support of the submission that the right of the press of free expression is of all citizens
speaking, publishing and printing in all languages and the grave concern for freedom of
expression which permitted the inclusion of Article 19 (1)(a) is not to be read as a
command that the Government of Parliament is without power to protect that freedom.
6. The Additional Solicitor General relied on the American decision in Red Lion
Broadcasting Co. v. Federal Communications Com. (supra) in support of the contention
that there should be an uninhibited marketplace of idea in which truth will ultimately
prevail and there should not be monopolization of that market whether it be by the
government itself or by a private licensee- The press is not exposed to any mischief of
monopolistic combination.
7. The Additional Solicitor General further contended that the business aspect of the press
had no special immunity and the incidental curtailment in the circulation could not be
freedom of speech and expression of the press.
8. The respondent contended that it is open to an unrestricted use of any form of paper so
long as newspapers do not apply for newsprint. This would establish that there is no
shortage of white printing paper.
 JUDGEMENT

Justice J. Ray pronounced their opinion to the court.

The Supreme Court observed that the petitions were absolutely maintainable. As per the
matter of facts, the petitioners were companies were not barred to grant relief for violation of
the Fundamental Rights of editorial staff and shareholders (who were also petitioners).
Moreover, the bar under ARTICLE 358 did not apply to the laws passed prior to the
promulgation of emergency, and, hence, the newsprint policy and orders could be challenged
as the previous year’s policy and relevant orders.

Further, publication means dissemination and circulation. The press has to carry on its
activity by keeping in view the class of readers, the condition of labor, price of material,
availability of advertisement, size of paper and the different kinds of news comments and’
views and advertisement, size of paper and the differences which are to be published and
circulated.

The law which lays excessive and prohibited burden which would restrict the circulation of a
newspaper will not be saved by ARTICLE 19 (2) of the Indian Constitution. The Court’s
opinion that freedom of the press was an essential element of freedom of speech expression
guaranteed under ARTICLE 19(1)(a) of the Indian Constitution.

It was held that the validity of the Newspaper Control Order, which xed the minimum no. of
pages in the newspaper, was constitutionally challenged and nally Supreme Court stuck down
the News Paper Control Order because it directly affected the provision of the right to
freedom of speech and expression guaranteed under ARTICLE 19 (1) (a) of the Indian
constitution but not reasonable restriction guaranteed under Article 19 (2) of the Indian
constitution.

Therefore, the Supreme Court of India accepted petitioners’ challenges that certain
restrictions and regulations on newspapers affected the right to freedom of speech and
expression. The Court found that because the freedom of the press involved both qualitative
and quantitative dimensions, the Newsprint Policy was unconstitutional as its quantitative
restrictions were not justified by a shortage of newsprint; the Newsprint Order and Import
Control Order were not struck down.
RATIO

1. The Bank Nationalization case has established the view that the fundamental rights of
shareholders as citizens are not lost when they associate to form a company when their
fundamental rights as shareholders are impaired by State action their rights as
shareholders are protected. The reason is that the shareholders’ rights are equally and
necessarily affected if the rights of the company are affected. The rights of shareholders
with regard to Article 19(1)(a)are projected and manifested by the newspapers owned and
controlled by the shareholders through the medium of the Corporation. The locus standi
of the shareholder petitioners is beyond challenge after the ruling of this Court in the
Bank Nationalisation case. The presence of the company is on the same ruling not a bar to
the grant of relief. The direct operation of the Act upon the rights forms the real test.
2. The present petitions which were originally filed to challenge the Newsprint Policy for
1971-72 were amended to challenge the 1972- 73 policy. The impeached policy was a
continuation of the old policy. Article 358 does not apply to executive action taken during
the emergency if the same is a continuation of the prior executive action or an emanation
of the previous law which prior executive action or previous law would otherwise be
violative of Article 19 or be otherwise unconstitutional. During the proclamation Article
19 is suspended, but it would not authorise the taking of detrimental executive action
during the emergency affecting the fundamental rights in Article 19 without any
legislative authority or in purported exercise of power conferred by any pre-emergency
law which was invalid when enacted.
3. The power of the Government to import newsprint cannot be denied. The power of the
Government to control the distribution of newsprint cannot equally be denied. This Court
cannot adjudicate on such policy measures unless the policy is alleged to be mala fide.
The Court could also not go into the dispute as to the quantity of indigenous newsprint
available for newspapers. The records with regard to the making and publication of the
news print policy for 1972-73 showed that the policy was published under the authority of
the Cabinet decision. The policy was therefore validly brought into existence.
4. Although Art 19(1) (a) does not mention the freedom of the Press, it is the settled view of
this Court that freedom of speech and expression includes freedom of the Press and
circulation. The Press has the right of free propagation and free circulation without any
previous restraint on publication. If a law were to single out the press for laying down
prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice
as to personnel, prevent newspapers from being started and compel the press to
Government aid, this would violate Art.19(1)(a)and would fall outside the Protection
afforded by Art 19(2)The concept of regulation of fundamental rights borrowed and
extracted from American decisions cannot be accepted. The American First Amendment
contains no exceptions like our Art 19 (2) of the Constitution. This Court has established
freedom of the press to speak and express. That freedom cannot be abridged and taken
away by the manner the impugned policy has done.
5. A newspaper control policy is ultra vires the Import Control Act and the Import control
Order. The machinery of Import Control cannot be utilised to control or curb circulation
or growth or freedom of newspapers in India. The pith and substance doctrine is used in
ascertaining whether the Act falls under one Entry while incidentally encroaching upon
another Entry. Such a question does not arise here. The Newsprint Control Policy is found
to be newspaper control order in the guise of framing an Import Control Policy for
newsprint.
6. This Court in the Bank Nationalisation case laid down two tests:
 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.
 it is the effect of the law and the action upon the right which attracts the jurisdiction
of the court to grant relief.
 The direct operation of the Act upon the rights forms the real test.

The effect and consequence of the impugned policy upon the newspapers is directly
controlling the growth and circulation of newspapers. The direct effect is the restriction upon
circulation of newspapers, growth of newspapers through pages, exposed to financial loss,
freedom of speech and expression is infringed.

1. It is indisputable that by freedom of the press is meant the right of all citizens to speak,
publish and express their views. The freedom of the press embodies the right of the
 people to read. The freedom of the press is not antithetical to the right of the people to
speak and express.
2. The impeached policy violates Article 14 because it treats newspapers which are not
equal equally in assessing the needs and requirements of newsprint. The 7 newspapers
which were operating above 10 page level are placed at a disadvantage by the fixation of
10 page limit and entitlement to quota on that basis. There is no intelligible differentia.
3. The basic entitlement in Remark V to quota for newspapers operating above 10 page level
violates Article 19(1) (a) because the quota is hedged in by direction not increase the page
number above 10. The reduction of page limit to 10 for the aforesaid reasons violates
Article 19(1) (a) and Article 14 of the Constitution.
4. Under Remark VII(C) those-newspapers within the ceiling of 10 pages get 20 per cent
increase in the number of pages. They require circulation more than the number of pages.
They are denied circulation as a result of the policy. The big English dailies which need
to increase their pages are not permitted to do so. Other dailies which do not need
increase in pages are permitted quota for increase but they are denied the right of
circulation. This is not newsprint control but newspaper control.
5. Discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by
which newspapers with less than 1,00,000 circulation have been given 10% increase in
circulation whereas those with more than 1,00,000 circulation have been given only 3%
increase in circulation.
6. The first part of Remark VIII prohibits increase in pages by reducing circulation. In the
past adjustability between pages and circulation was permitted. The individual
requirements of different dailies render it eminently desirable in some cases to increase
the number of pages than circulation. The denial of this flexibility or adjustment is rightly
said to hamper the quality, range and standard of the dailies and to affect the freedom of
the press. Big dailies are treated to be equal with newspapers who are not equal to them
thus violating Article 14.
7. The second prohibition in Remark VIII prevented common ownership units from
adjusting between them the newsprint quota allotted to each of them. The prohibition is to
use the newsprint quota of one newspaper belonging to a common ownership unit for
another newspaper belonging to that unit. Newsprint is allotted to each paper. The
newspaper is considered to be the recipient. A single newspaper will suffer if common
ownership units are allowed to adjust quota within their group.
8. Under Remark X a common ownership unit could bring out a newspaper or start a new
edition of an existing paper even from their allocated quota. it is an abridgment of the
freedom of expression to prevent a common ownership unit from starting a new edition or
a new newspaper. A common ownership unit should be free to start a new edition out of
their allotted quota and it would be logical to say that such a unit can use the allotted
quota for changing the page structure and circulation of different editions of the same
paper. Newspapers however cannot be permitted to use allotted quota for starting a new
newspaper. Newspapers will have to make necessary application for allotment of quota in
that behalf. It will be open to the appropriate authorities to deal with the application in
accordance with law.
9. The liberty of the press remains an Ark of the Covenant. The newspapers give the people
the freedom to find out which ideas are correct. Therefore the freedom of the press is to
be enriched by removing the restrictions on page limit and allowing them to have new
editions of newspapers.
10. The Press is not exposed to any mischief of monopolistic combination. The newsprint
policy is not a measure to combat monopolies. The newsprint policy should allow the
newspapers that amount of freedom of discussion and information which is needed or will
appropriately enable the members of the society to preserve their political expression of
comment not only upon public affairs but also upon the vast range of views and matters
needed for free society.
11. Clause 3(3A) of the 1962 Order provides that no consumer of newsprint other than a
publisher of text books of general interest shall use any kind of page other than newsprint
except with the permission of the Controller. It was therefore wrong to say that it was
open to newspapers to make unrestricted use of any form of paper so long as newspapers
did not apply for newsprint.
12. In the result the provisions in remarks V, VII (a), VII(C) and VIII of the Policy being
violative of Arts. 14 &19 (1) (a) of the Constitution must be struck down as
unconstitutional. The prohibition in Remark X against common ownership unit from
starting a new newspaper periodical or a new edition must be declared unconstitutional
and struck down as violative of Article 19(1)(a)of the Constitution. In the circumstances
of the case the Court did not find it necessary to express any opinion on Clause 3(3) and
Clause 3(3A).

Rule of Law established-