Writ Petition NOS
2656 60
2935 40 2941 46 2947 52 3402 3467 3595 3600 03 3608 3632 3653 3661 3821 3890 93 4590 93
4613 15 5222 5576 5600 02 5726 27 7410
8459 62 8825 8944 of 1981 1325 of 1982 470 72 of 1984
T C Nos
23 of 1983 and 23 of 1984
AND Writ Petitions Nos
3114 17 of 1981 WITH Writ Petitions Nos
3393 93 of 1981 WITH Writ Petitions No 3853 of 1981 WITH Writ Petitions Nos
6446 47 of 1181 Under Article 32 of the Constitutions of India AK Sen AB Divan FS Nariman KK Venugopal BR Agarwala Miss Vijay Lakshmi Menon AK Ganguli PH Parekh CS Vaidyanalingam DN Mishra Pravin Kumar KR
Nambiar MC Dhingra Miss Sieta Vaidyalingam PC Kapur Pramod Dayal CM 300 Nayar SS Munjral KK Jain SK Gupta Al
Sangar Ranjan Mukherjee Sudip Sarkar PK Ganguli Miss Indu Malhotra PR
Seetharaman and V Shekhar for the petitioners
K Parasaran Attorney General of India Krishna Iyer PA Francis A Subba Rao Dalveer Bhandari and RN Poddar for the respondents
FS Nariman section Dholakia Soli J Sorabjee Anil B Divan JB Dadachandji section Sukumaran DN Mishra KP
Dhanda pani RC Bhatia PC Kapur AN Haksar OC Mathur Miss Meera Mathur Dr Roxna Swamy Arun Jetley PH Parekh Miss Divya Bhalla and Pinaki Misra for the intervener The Judgment of the Court was delivered by VENKATARAMIAH J
I Pleadings The majority of Petitioners in these petitions filed under Article 32 of the Constitution are certain companies their share holders and their employees engaged in the business of editing printing and publishing newspapers periodicals magazines etc Some of them are trusts or other kinds of establishments carrying on the same kind of business
They consume in the course of their 5 activity large quantities of newsprint and it is stated that 60 of the expenditure involved in
the production of a newspaper is utilised for buying newsprint a substantial part of which is import ed from abroad
They challenge in these petitions the validity of the imposition of import duty on newsprint imported from abroad under section 12 of the Act 52 of 1962 read with section 2 and Heading No 480121 Sub heading No 2 in the First Schedule to the Act 51 of 1975 and the levy of auxiliary duty under the Finance Act 1981 on newsprint as modified by notifications issued under section 25 of the with effect from March 1 1981
The first set of writ petitions challenging the above levy was filed in May 1981
At that time under the read with the  customs duty of 40  ad valorem was payable on newsprint
Under the Finance Act 1981 an auxiliary duty of 30 ad valorem was payable in addition to the customs duty
But by notifications issued under section 25 of the  the customs duty had been reduced to 10 301 ad valorem and auxiliary duty had been reduced to 5 ad valorem in the case of newsprint used for printing newspapers books and A periodicals
During the pendency of these petitions while the was amended levying 40 ad valorem plus Rs 1000 per MT as customs duty on newsprint the auxiliary duty payable on all goods subject to customs duty was increased to 50 ad valorem
But by reason of notifications issued under section 25 of the customs duty at a flat rate of Rs 550 per MT and auxiliary duty of Rs 275 per MT are now being levied on newsprint ie in all Rs 825 per MT is now being levied
The petitioners inter alia contend that the imposition of the import duty has the direct effect of crippling the freedom of speech and expression guaranteed by the Constitution as it has led to the increase in the price of newspapers and the inevitable consequence of reduction of their circulation
It is urged by them that with the growth of population and literacy in the country every newspaper is expected to register an automatic growth of at least 5 in its circulation every year but this growth is directly impeded by the increase in the price of newspapers
It is further urged that the method adopted by the and the in determining the rate of import duty has exposed the newspaper publishers to the Executive interference
The petitioners contend that there was no need to impose customs duty on news print which had enjoyed total exemption from its payment till March 1 1981 as the foreign exchange position was quite comfortable
Under the scheme in force the State Trading Corporation of India sells newsprint to small newspapers with a circulation of less than 15000 at a price which does not include any import duty to medium newspapers with a circulation between 15000 and 50000 at a price which includes 5 ad valorem duty now Rs 275 per MT and to big newspapers having a circulation of over 50000 at a price which includes the levy of 15 ad valorem duty now Rs 825 per MT
It is stated that the classification of newspapers into big medium and small newspapers is irrational as the purchases on high seas are sometimes effected by a publisher owning many newspapers which may belong to different classes
The petitioners state that the enormous increase in the price of newsprint subsequent to March 1 1981 and the inflationary economic conditions which have led to higher cost of production have made it impossible for the industry to bear the duty any longer
Since the capacity to bear the duty is an essential element in determining the reasonableness 302 Of the levy it is urged that the continuance of the levy is violative of Article 191a and Article 191g of the Constitution
It is suggested that the imposition of the levy on large newspapers by the Executive is done with a view to stifling circulation of news
papers which are highly critical of the performance of the administration
Incidentally the petitioners have contended that the classification of newspapers into small medium and big for purposes of levy of import duty is violative of Article 14 of the Constitution
The petitioners have appended to their petitions a number of annexures in support of their pleas
On behalf of the Union Government a counter affidavit is filed
The deponent of the counter affidavit is R section Sidhu Under Secretary to the Government of India Ministry of Finance Department of Revenue
In paragraph 5 of the counter affidavit it is claimed that the Government had levied the duty in the public interest to augment the revenue of the Government
It is stated that when exemption is given from the customs duty the Executive has to satisfy itself that there is some other corresponding public interest justifying such exemption and that in the absence of any such public interest the Executive has Do power to exempt and that it has to carry out the mandate of Parliament which has fixed the rate of duty by the 
It is also claimed that the classification of newspapers for purposes of granting exemption is done in the public interest having regard to the relevant considerations
It is denied that the levy suffers from any malafides
It is pleaded that since every section of the society has to bear its due share of the economic burden of the State levy of customs duty on newsprint cannot be considered to be violative of Article 19 1 a of the Constitution
But regarding the plea of P the petitioners that the burden of taxation is excessive the counter affidavit states that the said fact is irrelevant to the levy of import duty on newsprint
In reply to the allegation of the petitioners that there was no valid reason for imposing the duty as the foreign exchange position was quite comfortable the Union Government has stated that the fact that the foreign exchange position was quite comfortable was no bar to the imposition of import duty
It is further pleaded that since the duty imposed is an indirect tax which would be borne by the purchaser of newspaper the petitioners cannot feel aggrieved by it
II A Brief History of the levy of Customs Duty on Newsprint In order to appreciate the various contentions of the parties 303 it is necessary to set out briefly the history of the levy of customs A duty on newsprint in India
Even though originally under the Indian Tariff Act 1934 there was a levy of customs duty on imported paper exemption had been granted for import of white grey or unglazed newsprint from the levy of any kind of customs duty in excess of 157 per cent ad valorem but subsequently a specific import duty of Rs 50 per MT used to be levied on newsprint imports upto 1966
The question of levy of customs duty on newsprint was examined by the Inquiry Committee on Small Newspapers
In its Report submitted in 1965 that Committee recommended total exemption of newsprint from customs duty because in 90xQ of the countries in the world no such levy was being imposed because newspapers played a vital role in a democracy
On the basis of the said recommendation the Government of India abolished customs duty on newsprint altogether in the year 1966 in exercise of its power under section 25 of the 
The price of newsprint was Rs 725 per MT during the year 1965 66 but there was a sudden spurt in its price in 1966 67 when it rose to Rs 1155 per MT
During the period 1966 71 although almost all imported goods suffered basic regulatory and auxiliary customs duty there was no such levy on newsprint in spite of severe foreign exchange crisis which arose on the devaluation of the Indian Rupee in 1966
But on account of the financial difficulties which the country had to face as a consequence of the Bangladesh war in 1971 a regulatory duty of 2 12 was levied on newsprint imports to meet the difficult situation by the Finance Act of 1972
The price of newsprint in the year 1971 72 was Rs 1134 per MT
The above 2 12 ad valorem regulatory duty was abolished by the Finance Act of 1973 P and was converted into 5 auxiliary duty by the said Act
This levy of 5 was on all goods including newsprint imported into India
On April 1 1974 under the Import Control order issued under section 3 of the Imports and Exports Control Act 1947 import of newsprint by private parties was banned and its import was canalised through the State Trading Corporation of India
In 1975 the came into force
By this Act the Indian Tariff Act 1934 was repealed
Under section 2 read with Heading No 4801 21 of the First Schedule to the  a levy of basic customs duty of 40 ad valorem was imposed on newsprint
But in view of the exemption granted in the year 1966 which remained in force the imposition made by 304 the did not come into force
Only 5 auxiliary duty which was levied from April 1 1973 continued to be in operation
In the budget proposals of July 1977 the 5 auxiliary duty was reduced to 2 12 but it was totally abolished by a notification issued under section 25 of the on July 15 1977
The notification dated July IS 1977 read as follows NOTIFICATION CUSTOMS GSR No
In exercise of the powers conferred by sub section 1 of section 25 of the 52 of 1962 and in supersession of the notification of the Government of lndia in the Department of Revenue and Banking No 72 Customs dated the 18th June 1977 the Central Government being satisfied that it is necessary in the public interest so to do hereby exempts newsprint falling under sub heading 2 of Heading No 4801 21 of the First Schedule to the 51 of 1975 when imported into India from the whole of that portion of the duty of customs leviable thereon which is specified in the said First Schedule
sd Joseph Dominic Under
Secretary to the Government of India
 The price of newsprint during the year 1975 76 was Rs 3676 per MT
The total exemption from customs duty imposed on newsprint was in force till March 1 1981
In the meanwhile the Central Government notified increased salaries and wages to k employees of newspaper establishments in December 1980 on the recommendations contained in the Palekar Award
On March 1 1981 the notification dated July 15 1977 issued under section 25 1 of the granting total exemption from customs duty was superseded by the issue of a fresh notification which stated that the Central Government had in the public interest exempted newsprint imported into India for printing of newspapers books and periodicals from so much of that portion of the duty of customs leviable thereon as was in excess of 10 per cent ad valorem
The effect of the said notification was that publishers of newspapers had to pay ten per cent ad valorem customs duty on imported newsprint
By another notification issued at about the same time auxiliary 305 duty imposed by the Finance Act of 1981 above 5 per cent ad valorem was exempted in the case of newsprint
The net result 
was that a total duty of IS per cent ad valorem came to be imposed on newsprint for the year 1981 82
The explanation given by the Government in support of the above notification was as follows Customs duty on newsprint Originally import of newsprint did not attract any customs duty
The Government of India abolished the  customs duty on newsprint after the devaluation of the rupee on the recommendation of the Inquiry Committee on Small Newspapers 1965
The Committee had mentioned in its report that 80 of the newsprint in international trade was free from customs duty and had recommended complete abolition of customs duty on newsprint
However during the Bangladesh crisis in 1971 a212 ad valorem regulatory duty was imposed on newsprint imports
Subsequently this was abolished on April 11973 and in its place a 5 auxiliary customs duty on newsprint imports was proposed in the Union Budget Proposals for 1973 74
While no customs duty was levied on newsprint because of the exemption granted by Customs Notification No 235FNo527176 CUS TU dated August 21976 of the Department of Revenue and Banking 5 auxiliary duty was continued to be levied on imported newsprint till July 151977 when the Ministry of Finance Department of Revenue by its Notification No 148FNo
Bud 2 Cus77 dated July l51977 exempted newsprint from the whole of duty of customs
Prior to this the Ministry of Finance Department of Revenue vide its Customs Notification No 72F No Bud
2 Cus77 dated June 181977 had reduced the auxiliary duty to 2 12
In the Budget proposals for the current year the Minister of Finance has proposed a customs duty of 15 on newsprint imports which has become effective from March 11981 because of the Customs Notification No 24F No Bud Cus81 dated March 11981
This 15 customs duty constitutes 10 basic duty and 5 auxiliary duty
 306 The price of imported newsprint in March 11981 was A Rs 4560 per MT
The extract from the speech of the Finance Minister in support of the imposition of a total 15 of duty 10 basic duty and 5 auxiliary duty on newsprint is given below The levy of 15 per cent customs duty on newsprint has understandably attracted a good deal of comment both within the House and outside
As it has been explained in the Budget speech this levy is intended to promote a measure of restraint in the consumption of imported newsprint and thus help in conserving foreign exchange
In the light of the observations made by the Hon
Members in the course of the General Debate on the Budget I had assured the House that I would try to work out a scheme of providing relief to small and medium newspapers about which Members had voiced their special concern
We have now worked out the modalities of a scheme for affording relief to small and medium newspapers
Under this Scheme the State Trading Corporation would sell imported newsprint to small newspapers at a price which would not  include any amount relatable to import duty
Medium newspapers will get their newsprint at a price which would include an amount relatable to import duty of S per cent ad valorem
Big newspapers would however pay a price which will reflect the full duty burden of 15 per cent ad valorem
There is a definition of small medium and big newspapers in the Press Council
At the moment the present definition is that these which have a circulation of 15000 or less are classified as small those with a circulation of more than 15000 but less than 50000 are classified as medium and those with a circulation of over 50000 are called big newspapers
Therefore the small newspapers with a circulation of 15000 and less will not pay any customs duty those with a circulation between 15000 and 50000 will pay customs duty of 5 per cent and with a circulation of over 50000 will pay 15 per cent
Suitable financial arrangements will be worked out as between  Government and the State Trading Corporation to enable the STC to give effect to these concessions
As Hon
Members are aware the categorisation of newspapers as small medium and big in 307 terms of circulation is already well understood in the A industry and is being followed by the Ministry of Information and Broadcasting for purposes of determining initial allocation of newsprint and for setting the rates of growth of consumption of newsprint by various newspapers from year to year
The State Trading Corporation will for purposes of the present scheme follow the same categorisation of newspapers into small medium and big
These arrangements will
in effect provide a relief of about Rs 586 crores to small and medium newspapers
 The relevant provisions of the laws imposing customs duty and auxiliary duty on newsprint which arise for consideration are these Section 12 of the reads 12
Dutiable goods 1 Except as otherwise provided n in this Act or any other law for the time being in force duties of customs shall be levied at such rates as may be specified under the 5l of 1975 or any other law for the time being in force on goods imported into or exported from India
2   Section 2 of the reads 2 Duties specified in the Schedules to levied
The rates at which duties of customs shall be levied under the  are specified in the First and Second Schedules
 The relevant part of Chapter 48 of the First Schedule to the which deals with import tariff read in 1981 thus Heading Sub heading No Rate of duty Duration No and description Standard Preferential when of article Areas rates of duty are protective 308 1 2 3 4 5 480121         2 Newsprint containing mechanical wood pulp amounting to not less than 70 per cent of the fibre content 40 excluding chrome marble flint poster stereo and art paper           Newsprint used by the petitioners falls under Sub heading 2 of Heading No 48O121 by Which 40 ad valorem customs duty is levied on it
By the Finance Act of 1982 in sub heading No 2 of Heading No 48O121 for the entry in column 3 the entry 40 plus Rs 1000 per tonne was substituted
The relevant part of section 44 of the Finance Act 1982 which levied an auxiliary duty of customs read thus 44
1 In the case of goods mentioned in the First Schedule to the  or in that Schedule as amended from time to time there shall be levied and collected as an auxiliary duty of customs an amount equal to thirty per cent of the value of the goods as determined in accordance with the provisions of section 14 of the hereinafter referred to as the 
          The above rate of auxiliary duty was to be in force during the financial year 1982 83 and it was open to the Government to grant exemption from the whole or any part of it under section 25 of the 
Section 45 of the Finance Act 1983 imposed fifty per cent of the value of the goods as auxiliary duty in the place of thirty per cent imposed by the Finance Act 1982
309 But by notifications issued on February 281982 under section A 25 2 of the  which were issued in supersession of the notification dated March 1 1981 Rs 550 per tonne was imposed as customs duty on newsprint and auxiliary duty was fixed at Rs 275 per tonne
In all Rs 825 per tonne of newspaper has to be paid as duty
The high sale price of newsprint had by that time gone up above Rs 5600 per tonne
What is of significance is that when the Government was of the view that the total customs duty on newsprint in the public interest should be not more than 15 per cent and when these writ petitions questioning even that 15 per cent levy were pending in a this Court Parliament was moved by the Government specifically to increase the basic customs duty on newsprint by Rs 1000 per tonne by the Finance Act 1982
Hence today if the Executive Government withdraws the notifications issued under section 25 of the  a total duty of 90 per cent plus Rs 1000 per tonne would get clamped on imported newsprint
D The effect of the imposition of 15 per cent duty may to some extent have led to the increase in the price of newspapers in 1981 and it resulted in the fall in circulation of newspapers
On this point the Second Press Commission has made the following observations in its Report Vol 1 page 18 E Fall in circulation during 1981
To examine recent trends in circulation and their relationship to recent trends in the economic environment the Commission s office undertook an analysis of the Audit Bureau of Circulations ABC certificates for the period July 1980 to June 1981
It was found that there was a decline in circulation in the period January June 1981 compared to the previous six month period in the case of dailies and periodicals
 The two important events which had taken place during the period between July 1980 to June 1981 were the enforcement of the Palekar Award regarding the wages and salaries payable in the newspaper industry and the imposition of the customs duty of 15 on the imported newsprint
Under the newsprint policy of the Government there are three sources of supply of newsprint i high 310 seas sales ii sales from the buffer stock built up by the State A Trading Corporation which includes imported newsprint and iii newsprint manufactured in India
Imported newsprint is an important component of the total quantity of newsprint utilised by any newspaper establishment
III The Importance of Freedom of Press in a Democratic society and the Role of Courts
Our Constitution does not use the expression freedom of press  in Article 19 but it is declared by this Court that it is included in Article 191a which guarantees freedom of speech and expression
See Brij Bhushan  Anr
vs The State of Delhil and Bennett coleman  Co  Ors
vs Union of lndia  ors2 
The material part of Article 19 of the Constitution reads 19
1 All citizens shall have the right a to freedom of speech and expression           g to practise any profession or to carry on any occupation trade or business 2 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 interests of the sovereignty and integrity of 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       6 Nothing in sub clause gof the said said clause shall affect the operation of any existing law in so far as it imposes or prevent the State from making any law impos 1  2  311 ing in the interests of the general public reasonable restrictions on the exercise of the right conferred by the said sub clause    The freedom of press as one of the members of the Constituent Assembly said is one of the items around which the greatest and the bitterest of constitutional struggles have been waged in all countries where liberal constitutions prevail
The said freedom is attained at considerable sacrifice and suffering and ultimately it has come to be incorporated in the various written constitutions
James Madison when he offered the Bill of Rights to the Congress in 1789 is reported as having said The right of freedom of speech is secured the liberty of the press is expressly declared to be beyond the reach of this Government  See 1 Annals of Congress 1789 96 p 141
Even where there are no written constitutions there are well established constitutional conventions or judicial pronouncements securing the said freedom for the people The basic documents of the United Nations and of some other international bodies to which reference will be made hereafter give prominence to the said right
The leaders of the Indian independence movement attached special significance to the freedom of speech and expression which included freedom of press apart from other freedoms
During their struggle for freedom they were moved by the American Bill of Rights containing the First Amendment to the Constitution of the United States of America which guarnteed the freedom of the press
Pandit Jawaharlal Nehru in his historic resolution containing the aims and objects of the Constitution to be enacted by the Constituent Assembly said that the Constitutions should guarantee and secure to all the people of India among others freedom of thought and expression
He also stated elsewhere that I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press See DR Mankekar The Press under Pressure 1973 p 25
The Constituent Assembly and its various committees and sub committees considered freedom of speech and expression which included freedom of press also as a precious right
The Preamble to the Constitution says that it is intended to secure to all citizens among others liberty of thought expression and belief
It is significant that in the kinds of restrictions that may be imposed on the freedom of speech and expression any reasonable restriction impossible in the public interest is not one enumerated in clause 2 312 of Article 19
In Romesh Thappar vs The State of Madras and Brij Bhushan s case supra this Court firmly expressed its view that there could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 192 and thereby made it clear that there could not be any interference with that freedom in the name of public interest
Even when clause 2 of Article 19 was subsequently substituted under the Constitution First Amendment Act 1951 by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression in the interests of sovereignty and integrity of India the security of the State friendly relations with foreign states public order decency or morality in relation to contempt of court defamation or incitement to an offence Parliament did not choose to include a clause enabling the imposition of reasonable restrictions in the public interest
Article 19 of the Universal Declaration of Human Rights 1948 declares very one has the right to freedom of opinion and expression this right includes freedom to hold opinions without interference and to seek receive and impart information and ideas through any media and regardless of frontiers 
Article 19 of the International Covenant on Civil and Political Rights 1966 reads Article 19 1
Everyone shall have the right to hold opinions without interference
Everyone shall have the right to freedom of expression this right shall include freedom to seek receive and impart information and ideas of all kinds regardless of frontiers either orally in writing or in print in the form of art through any other media of his choice
The exercise of the rights provided for in Paragraph 2 of this Article carries with it special duties and responsibilities
It may therefore be subject to certain restrictions but these shall only be such as are provided by law and are necessary 313 a For respect of the rights or reputations of others b For the protection of national security or of public order order public or of public health or morals
 Article 10 of the European Convention on Human Rights reads Article 10 1
Everyone has the right to freedom of expression
This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers
This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises
The exercise of these freedoms since it carries with it duties and responsibilities may be subject to such formalities conditions restrictions or penalities as are prescribed by law and are necessary in a democratic society in the interests of national security territorial integrity or public safety for the prevention of disorder or crime for the protection of health or morals for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary
 The First Amendment to the Constitution of the United States of America declares Amendment I Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances Frank C Newman and Karel Vasak in their article on Civil 314 and Political Rights  in the International Dimensions of Human Rights Edited by Karel Vasak Vol
I state at pages 155 156 thus ii Freedom of opinion expression information and communication
A pre eminent human right insofar as it allows everyone to have both an intellectual and political activity freedom of expression in the broad sense actually includes several specific rights all linked together in a continuum made increasingly perceptible by modern technological advance
What is primarily involved is the classic notion of freedom of opinion that is to say the right to say what one thinks and not to be harassed for one s opinions
This is followed by freedom of expression in the limited sense of the term which includes the right to seek receive and impart information and ideas regardless of frontiers either orally in writing or in print in the form of art or through any other media of one s choice When freedom of expression is put to use by the mass media it acquires an additional dimension and becomes freedom of information
A new freedom is being recognised which is such as to encompass the multiform requirements of these various elements while incorporating their at once individual and collective character their implications in terms of both rights and responsibilities this is the right to communication in connection with which Unesco has recently undertaken considerable work with a view to its further elaboration and implementation Many Voices One World a publication of UNESCO which contains the Final Report of the International Commission for the study of Communication Problems presided over by Sean Mac Bride in part V thereof dealing with Communication Tomorrow  at page 265 emphasizes the importance of freedom of speech and press in the preservation of human rights in the following terms IV
Democratization of Communication
Human Rights Freedom of speech of the press of information and of assembly are vital for the realization of human rights 315 Extension of these communication freedoms to a broader individual and collective right to communicate is an evolving principle in the democratization process
Among the human rights to be emphasized are those of equality for women and between races
Defence of all human rights is one of the media s most vital tasks
We recommend 52
All those working in the mass media should contribute to the fulfilment of human rights both individual and collective in the spirit of the Unesco Declaration on the mass media and the Helsinki Final Act and the International Bill of human Rights
The contribution of the media in this regard is not Only to foster these principles but also to expose all infringements wherever they occur and to support those whose rights have been neglected or violated
Professional associations and public opinion should support journalists subjected to pressure or who suffer adverse consequences from their dedication to the defence of human rights
The media should contribute to promoting the just cause of peoples struggling for freedom and independence and their right to live in peace and equality without foreign interference
This is especially important for all oppressed peoples who while struggling against colonialism religious and racial discrimination are deprived of opportunity to make their voices heard within their own countries
Communication needs in a democratic society should be met by the extension of specific rights such as the right to be informed the right to infrom the right to privacy the right to practicipate in public communication all elements of a new concept the right to communicate
In developing what might be called a new era of social rights we suggest all the implications of the right to communicate to further explored
Removal of Obstacles Communication with its immense possibilities for influencing the minds and behaviour of people can be a powerful means of promoting democratization of society and of widening public participation in the decision making 316 process
This depends on the structures and practices of the media and their management and to what extent they facilitate broader access and open the communication process to a free interchange of ideas information and experience among equals without dominance of discrimination
 In today s free world freedom of press is the heart of social and political intercourse
The press has now assumed the role of the public educator making formal and non formal education possible in a large scale particularly in the developing world where television and other kinds of modern communication are not still available for all sections of society
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
Newspaper being surveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities
The authors of the articles which are published in newspapers have to be critical of the action of government in order to expose its weaknesses
Such articles tend to become an irritant or even a threat to power
Governments naturally take recourse to suppress newspapers publishing such articles in different ways
Over the years the governments in different parts of the world have used diverse methods to keep press under control
They have followed carrotstick methods
Secret payments of money open monetary grants and subventions grants of lands postal concessions Government advertisements conferment of titles on editors and proprietors of newspapers inclusion of press barons in cabinet and inner political councils etc
constitute one method of influencing the press
The other kind of pressure is one of using force against the press
Enactment of laws providing for precensorship seizures interference with the transit of newspapers and demanding security deposit imposition of restriction on the price of newspapers on the number of pages of newspapers and the area that can be devoted for advertisements withholding of Government advertisements increase of postal rates imposition of taxes on newsprint canalisation of import of newsprint with the object of making it unjustly costlier etc
are some of the ways in which Governments have tried to interfere with freedom of press
It is with a view to checking such malpractices which interfere with free flow of information democratic constitutions all over the world have made provisions guaran 317 teeing the freedom of speech and expression laying down the limits of interference with it
lt is therefore the primary duty Of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate
Thomas 1
Emerson in his article entitled Toward a General Theory of the First Amendment  The Yale Law Journal Vol
72877 at p 906 while dealing with the role of the Judicial institutions in a democratic society and in particular of the apex court of USA in upholding the freedom of speech and expression writes The objection that our judicial institutions lack the political power and prestige to perform an active role in protecting freedom of expression against the will of the majority raises more difficult questions
Certainly judicial institutions must reflect the traditions ideals and assumptions and in the end must respond to the needs claims and expectiations of the social order in which they operate
They must not and ultimately can not move too far ahead or lag too far behind
The problem for the Supreme Court is one of finding the proper degree of responsiveness and leadership or perhaps better of short term and long term responsiveness
Yet in seeking out this position the Court should not under estimate the authority and prestige it has achieved over the years
Representing the con science of the community it has come to possess a very real power to keep alive and vital the higher values and goals towards which our society imperfectly strives Given its prestige it would appear that the power of the Court to protect freedom of expression is unlikely to be substantially curtailed unless the whole structure of our democratic institutions is threatened
 What is stated above applies to the Indian courts with equal force 
In Romesh Thappar s case supra Brij Bhushan s case supra Express Newspapers Private Ltd  Anr
vs The Union of India  Ors
l Sakal Papers P Ltd  Ors vs The Union of India2 and Bennett Coleman s case supra this Court has very strongly pronoun 1 2  318 ced in favour of the freedom of press
Of these we shall refer to some observations made by this Court in some of them
In Romesh Thappar s case supra this Court said at page 602 The freedom lay at the foundation of all democratic organisations for without free political discussion on no public education so essential for the proper functioning of the processes of popular government is possible
A freedom of such amplitude might involve risks of abuse   
C nut it is better to leave a few of its noxious branches to their luxuriant growth than by pruning them away to injure the vigour of those yielding the proper fruits
 In Bennett Coleman s case supra AN Ray CJ
On behalf of the majority said at page 796 thus The faith of citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open
The faith in the popular government rests on the old dictum let the people have the truth and the freedom to discuss it and all will go well 
The liberty of the press remains an Ask of the Covenant  in very democracy 
The newspapers give ideas
 The newspaper give the people the freedom to find out what ideas are correct
 In the very same case Methew J observed at page 818 The constitutional guarantee of the freedom of speech is not so much for the benefit of the press as it is for the benefit of the public
The freedom of speech includes within its compass the right of all citizens to read and be informed
In Time vs Hill  the US Supreme Court said The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people In Griswold vs Connecticut   482 the US Supreme Court was of the opinion that the right of freedom of speech and press includes not only the right to utter or to print but the right to read 319 Justice Mathew proceeded to observe at pp
819 820 Under article 41 of the Constitution the State has a duty to A take effective steps to educate the people within limits of its available economic resources
That includes political education also
Public discussion of public issues together with the spreading of information and any opinion on these issues is supposed to be the main function of newspaper
The highest and lowest in the scale of intelligence resort to its columns for information
Newspapers is the most potent means for educating the people as it is read by those who read nothing else and in politics the common man gets his education mostly from newspaper
The affirmative obligation of the Government to permit the import of newsprint by expanding foreign exchange in that behalf is not only because press has a fundamental right to express itself but also because the 1 community has a right to be supplied with information and the Government a duty to educate the people within the limits of its resources
The Government may under cl 3 of the Imports Control Order 1955 totally prohibit the import of newsprint and thus disable any person from carrying on a business in newsprint if it is in the general interest of the public not to expend any foreign exchange on that score
If the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from the need of the community for information and the fundamental duty of Government of educate the people as also to satisfy the individual need for self exression it is not for the proprietor of a newspaper alone to say that he will reduce the circulation of the newspaper and increase its page level as the community has an interest in maintaining or increasing circulation of the newspapers
It is said that a proprietor of a newspaper has the freedom to cator to the needs of intellectual highbrows who may choose to browse in rich pastures and for that he would require more pages for a newspaper and that it would be a denial of his fundamental right if he were told that he cannot curtail the circulation and increase the pages
A claim to enlarge the volume of speech by diminishing the circulation 320 raises the problem of reconciling the citizens  right to unfettered exercise of speech in volume with the community s right to undiminished circulation
Both rights fall within the ambit of the concept of freedom of speech as explained above
 The Second Press Commission has explained the concept of freedom of press in its Report Vol
34 35 thus The expression freedom of the press  carries different meanings to different people
Individuals whether professional Journalists or not assert their right to address the public through the medium of the press
Some people stress the freedom of the editor to decide what shall be published in his paper
Some others emphasize the right of the owners to market their publication
To Justice Holmes the main purpose of the freedom was to prevent all prior restraint on publication
The theory is that in a democracy freedom of expression is indispensable as all men are entitled to participate in the process of formulation of common decisions
Indeed freedom of expression is the first condition of liberty
It occupies a preferred position in the hierarchy of liberties giving succour and protection to other liberties
It has been truly said that it is the mother of all other liberties
The press as a medium of communication is a modern phenomenon
It has immense power to advance or thwart the progress of civilization
Its freedom can be used to create a brave new world or to bring about universal catastrophe
Freedom of speech presupposes that right conclusions are more likely to be gathered out of a multitude of tongues than through any kind of authoritative selection
It rests on the assumption that the widest possible dissemination of information from as many diverse and antagonistic sources as possible is essential to the welfare of the public
It is the function of the Press to disseminate news from as many different sources and with as many different facts and colours as possible
A citizen is entirely dependent on the Press for the quality proportion and 321 extent of his news supply
In such a situation the exclusive and continuous advocacy of one point of view through the medium of a newspaper which holds monopolistic position is not conducive to the formation of healthy public opinion
If the newspaper industry is concentrated in a few hands the chance of an idea antagonistic to the idea of the owners getting access to the market becomes very remote
But our constitutional law has been in different to the reality and implication of non governmental restraint on exercise of freedom of speech by citizens
The indifference becomes critical when comparatively a few persons are in a position to determine not only the content of information but also its very availability
The assumption in a democratic set up is that the freedom of the press will produce a sufficiently diverse Press not only to satisfy the public interest by throwing up a broad spectrum of views but also to fulfill the individual interest by enabling virtually everyone with a distinctive opinion to find some place to express it
 D The petitioners have heavily relied upon the decision of this Court in sakal s case supra in which the constitutionality of the and the Daily Newspaper Price and Page Order 1960 arose for consideration
The petitioner in that petition was a private limited company engaged in the business inter alia of publishing daily and weekly newspapers in Marathi named Sakal  from Poona
The newspaper Sakal had a net circulation of 52000 copies on week days and 56000 copies on Sundays
The daily edition contained six pages a day for five days in a week and four pages on one day
This edition was priced at 7 paise
The Sunday edition consisted of ten pages and was priced at 12 paise
About 40 of the space in the newspaper was taken up by the advertisements and the rest by news views and other usual features
The newspaper price and page Act 1956 regulated the number of pages according to the price charged prescribed the number of supplements to be published and prohibited the publication and sale of newspapers in contravention of the Act
It also provided for the regulation of the size and area of advertising matter contained in a newspaper
Penalties were prescribed for contravention of that Act or the Order made thereunder
As a result of the enforcement of that Act in order to publish 34 pages on six days in a week as it was doing 322 then the petitioner had to raise the price from 7 paise to 8 paise per day and if it did not wish to increase the price it had to reduce the total number of pages to 24 The petitioner which could publish any number of supplements as and when it desire to do so before the Order impugned in that case was passed could do so thereafter only with permission of the Government
The contention of the petitioner in that case was that the impugned Act and the impugned Order were pieces of legislation designed to curtail the circulation of the newspaper as the increase in the price of the paper would adversely affect its circulation and they directly interfered with the freedom of the press
The validity of these pieces of legislation was challenged on the ground that they violated Article 19 1 a of the Constitution
The Union Government contested the petition
It pleaded that the impugned Act and the Order had been passed with a view to preventing unfair competition among newspapers and also with a view to preventing the rise of monopolistic combines so that newspapers might have fair opportunities of free discussion
It was also con tended that the impugned Act and the impugned Order had been passed in the public interest and the petitioner s business being a trading activity falling under Article 19 1 g of the Constitution any restriction imposed by the said Act and the Order was protected by Article 19 6 of the Constitution
This Court negativing the contention of the Union Government observed at page 866 thus Its object thus is to regulate something which as already stated is directly related to the circulation of a newspaper
Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech
It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech viz the right to circulate one s views to all whom one can reach or care to reach for the imposition of a restriction
It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by pro visions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength The impugned law for from being one which merely interferes with the right of freedom speech incidentally does so directly though it 323 seeks to achieve the end by purporting to regulate the business aspect of a newspaper
Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedoms guaranteed by our Constitution
The reason for this is obvious
The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of legislatures and governments and must be preserved
No doubt the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of news papers which would necessarily undermine their power to influence public opinion it cannot stat be regarded as a dangerous weapon which is capable of being used against democracy itself
 Continuing further the Court observed at pages 867 and 868 thus It was argued that the object of the Act was to prevent monopolies and that monopolies are obnoxious
We will assume that monopolies are always against public interest and deserve to be suppressed
Even so upon the view we have taken that the intendment of the Act and the direct
and immediate effect of the Act taken along with the impugned order was to interfere with the freedom of circulation of newspapers the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance
The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible for even if the end is desirable and permissible the means employed must not transgress the limits laid down by the Constitution if they directly impinge on any of the fundamental rights guaranteed by the Constitution it is no answer when the constitutionality of the measure is challenged that apart from the fundamental right infringed the provision is otherwise legal
 324 We have so far seen the importance of the freedom of speech and expression which includes the freedom of press
We shall now proceed to consider whether it is open to the Government to levy any tax on any of the aspects of the press industry
IV Do newspapers have immunity from taxation  Leaving aside small newspaper establishments whose circulation may be less than about 10000 copies a day all other bigger newspaper establishments have the characteristics of a large industry
Such bigger newspaper concerns are mostly situated in urban areas occupying large buildings which have to be provided with all the services rendered by municipal authorities
They employ hundreds of employees
Capital investment in many of them is in the order of millions of rupees
Large quantities of printing machinery are utilised by them a large part of which is imported from abroad
They have to be provided with telephones teleprinters postal and telegraphic services wireless communication systems etc
Their newspapers have to be transported by roads railways and air services
Arrangements for security of their property have to be made
The Government has to provide many other services to them
All these result in a big drain on the financial resources of the State as many of these services are heavily subsidized
Naturally such big newspaper organisations have to contribute their due share to the public exchequer
They have to bear the common fiscal burden like all others
While examining the constitutionality of a law which is alleged to contravene Article 19 1 a of the Constitution we cannot no doubt be solely guided by the decisions of the Supreme Court of the United States of America
But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country we may take them into consideration
The pattern of Article 19 1 a and of Article 19 1 g of our constitution is different from the pattern of the First Amendment to the American Constitution which is almost absolute in its terms
The rights guaranteed under Article 19 1 a and Article 19 1 g of the Constitution are to be read along with clauses 2 and 6 of Article 19 325 which carve out areas in respect of which valid legislation can be A made
It may be noticed that the newspaper industry has not been granted exemption from taxation in express terms
On the other hand Entry 92 of List I of the Seventh Schedule to the Constitution empowers Parliament to make laws levying taxes on sale or purchase of newspapers and on advertisements published therein
It is relevant to refer here to a few extracts from the speech of Shri Deshbandhu Gupta on the floor of the Constituent Assembly opposing the provisions in the Draft Constitution which authorised the State Legislatures to levy sales tax on sale of newspapers and tax on advertisements in newspapers
He said C 
No one would be happier than myself and my friends belonging to the press if the House were to decide today that newspapers will be free from all such taxes
Of course that is what it should be because in no free country with a democratic Government we have any such taxes as the sales tax or the advertisement tax     
I claim that newspapers do deserve a distinctive treatment
They are not an industry in the sense that other industries are
This has been recognised all over the world
They have a mission to perform
And I am glad to say that the newspapers in India have performed that mission of public service very creditably and we have reason to feel proud of it
I would there
fore expect this House and my friend Mr Sidhva to bear it in mind at the time when God forbid any proposal comes before the Parliament for taxation
That would be the time for them to oppose it
Sit after all this is an enabling clause
It does not say that there shall be sales and advertisement tax imposed on newspapers
It does not commit the House today to the imposition of a tax on the sales of or a tax on advertisements published in newspapers All that we have emphasised is that newspapers as such should be taken away from the purview of the provincial Governments and brought to the Central List so that if at all at any time a tax is to be imposed on newspapers it should be done by the representatives of whole country realising the full 326 implications of their action
It should not be an isolated A act on the part of some Ministry of some province
That was the fundamental basis of our amendment         
If today all news papers including those published from Delhi are opposing the imposition of these taxes with one voice and demanding their inclusion in the Central List they do so not because it is a question of saving some money but be cause the fundamental question of the liberty of the press is involved
By advocating their transfer to the Central List we are prepared to run the risk of having these takes imposed in Delhi and in other provinces which have not sought to impose such taxes so far
But we do not want to leave it to the Provinces so that the liberty of the press remains unimpaired
We have faith in the Parliament we have faith in the collective wisdom of the country and we have no doubt that when this matter is viewed in the correct perspective there will be no such taxes imposed on the newspapers but we have not got that much faith in the Provincial Ministries
It is in that hope and having a full realisation of the situation that we have agreed as a matter of compromise or should I say as a lesser evil to have these two taxes transferred from the Provincial to the Central List Vide Constituent Assembly Debates Vol
IX pp
1175 1180 dated September 9 1949
Ultimately the power to levy taxes on the sale or purchase of newspapers and on advertisement published therein was conferred on Parliament by Entry 92 of List I of the Seventh Schedule to the Constitution
This shows the anxiety on the part of the framers of our Constitution to protect the newspapers against local pressures
But they however did not agree to provide any constitutional immunity against such taxation
The power to levy customs duties on goods imported into the country is also entrusted to Parliament by Entry 83 in List I of the Seventh Schedule to the Constitution
On the power of t e Government in the United States of America to levy taxes on and to provide for the licensing of news papers Corpus Juris Sequndum Vol 16 says at page 1132 as follows 327 213
13 Taxing and Licensing The Constitutional guaranties of freedom of speech and of the press are subject to the proper exercise of the government s power of taxation and reasonable license fees may be imposed on trades or occupations concerned with the dissemination of literature or ideas
As a general rule the constitutional guaranties of freedom of speech and of the press are subject to the proper exercise of the government s power of taxation so that the imposition of uniform and non discriminatory taxes is not invalid as applied to persons or organisations engaged in the dissemination of ideas through the publication or distribution of writing
The guaranty of freedom of the press does not forbid the taxation of money or property employed in the publishing business or the imposition of reasonable licenses and license fees on trades or occupations concerned with the dissemination of literature or ideas
A license or license tax to permit the enjoyment of freedom of speech and freedom of press may not however be required as a form of censorship and where the purpose of the tax or license is not for revenue or for reasonable regulation but is a deliberate and calculated device to prevent or to curtail the opportunity for the acquisition of knowledge by the people in respect of their governmental affairs the statute or ordinance violates the constitutional guaranties and particularly the Fourteenth Amendment to the federal Constitution
While an ordinance imposing a tax on and requiring a license for the privilege of advertising by distributing books circulars or pamphlets has been held valid an ordinance requiring the payment of a license tax by street vendors or peddlers is invalid as applied to members of a religious group distributing religious literature as part of their activities at least where the fee is not merely a nominal one imposed to defray the cost of regulation notwithstanding the ordinance is non discriminatory
A governmental regulation requiring a license to solicit for compensation memberships in organizations requiring the payment of dues is invalid 328 where it fixes indefinite standards for the granting of a license to an applicant
A provision of a retail sales tax act providing that a retailer shall not advertise as to the non collection of sales tax from purchasers does not deprive retailers of the constitutional right of free speech
 The above subject is summarised in American Jurisprudence 2d Vol 16 at page 662 thus Speech can be effectively limited by the exercise of that taxing power
Where the constitutional right to speak is sought to be deterred by a state s general taxing program due process demands that the speech be unencumbered until the state comes forward with sufficient proof to justify its inhibition
But constitutional guaranties are not violated by a statute the controlling purpose of which is to raise revenue to help defray the current expenses of state government and state obligations and which shows no hostility to the press nor exhibits any purpose or design to restrain the press
 It may be mentioned here that the First Amendment to the Constitution of the United States of America is almost in absolute terms
It says that the Congress shall make no law abridging the freedom of the press
Yet the American Courts have recognised the power of the State to levy taxes on newspaper establishments of course subject to judicial review by courts by the application of the due process of law principle
Due process of law does not forbid all social control but it protects personal liberty against social control unless such social control is reasonable either because of a constitutional exercise of the police power or of the power of taxation or of the power of eminent domain
If any legislation delimiting personal liberty is held to be outside of all three of these categories it is taking away of personal liberty without due process of law and is unconstitutional
The police power taxation and eminent
domain are all forms of social control which are essential for peace and good government The police power is the legal capacity of the severeignty or one of its governmental agents to delimit the personal liberty of persons by means which bear a substantial relation to the end to be accomplished for the protection of social interests which reasonably need protection
Taxation is the legal capacity of sovereignty or one of its govern 329 mental agents to exact or impose a charge upon persons or their property for the support of the government and for the payment for any other Public purposes which it may constitutionally carry out
Eminent domain is the legal capacity of sovereignty or one of its governmental agents to take private property for public use upon the payment of just compensation  It is under the above said sovereign power of taxation the government is able to levy taxes on the publishers of newspapers too subject to judicial review by courts notwithstanding the language of the First Amendment which is absolute in terms
In India too the power to levy tax even on persons carrying on the business of publishing newspapers has got to be recongnised as it is inherent in the very concept of government
But the exercise of such power should however be subject to scrutiny by courts
Entry 92 of List I of the Seventh Schedule to the Constitution expressly suggests the existence of such power
Thomas I Emerson in his article on the First Amendment The Yale Law Journal Vol 72 at p 941 has made certain relevant observations on the power of the State to impose taxes and economic regulations on newspaper industry
He says a Taxation and Economic Regulation
Regular tax measures economic regulations social welfare legislation and similar provisions may of course have some effect upon freedom of expression when applied to persons or organisations engaged in various forms of communication
But where the burden is the same as that borne by others engaged in different forms of activity the similar impact on expression seems clearly insufficient to constitute an abridging of freedom of expression
Hence a general corporate tax wage and hour or collective bargaining legislation factory laws and the like are as applicable to a corporation engaged in newspaper publishing as to other business organisations
On the other hand the use of such measures as a sanction to diminish the volume Of expression or control its content would clearly be as impermissible an abridgment as direct criminal prohibitions
The line may sometimes be difficult to draw the more so as the scope of the regulation is narrowed
Two principles for delineating the bounds of abridg 330 ing may be stated
First as a general proposition the validity of the measure may be tested by the rule that it must be equally applicable to a substantially larger group than that engaged in expression
Thus a special tax on the press alone or a tax exemption available only to those with particular political views or associations would not be permitted
second neither the substantive nor procedural provisions of the measure even though framed in general terms may place any substantial burden on expression because of their peculiar impact in that area
Thus the enforcement of a tax or corporate registration statute by requiring disclosure of membership in an association where such disclosure would substantially impair freedom of expression should be found to violate first amendment protection
Underlining by us
This view appears to have been accepted by our Second Press Commission in its Report Vol
I at page 35
The Commission observes 21
Economic and tax measures legislation relating to social welfare and wages factory laws etc may have some effect upon freedom of the Press when applied to persons or institutions engaged in various forms of communication
But where the burden placed on them is the same as that borne by other engaged in different forms of activity it does not constitute abridgment of freedom of the Press
The use of such measures however to control the content  of expression would be clearly impermissible
 In Alice Lee Grosjean Supervisor of Public Accounts for the State of Louisiana vs American Press Companyl in which the appellants had questioned the constitutional validity of an Act of Louisiana which required every person engaged in the business of selling or making any charge for advertising or for advertisements printed or published in any newspaper periodical etc
having a circulation of more than 20000 copies per week to pay in addition to all other taxes a license tax for privilege of engaging in such business in the State of Louisiana of two per cent 2 of the gross receipts of such business the Supreme Court of the United States observed at pages 668 669 1  80 L ed
331 In the light of all that has now been said it is evident that the restricted rules of the English law in respect of the A freedom of the press in force when the Constitution was adopted were never accepted by the American colonists and that by the First Amendment it was meant to preclude the national government and by the Fourteenth Amendment to preclude the states from adopting any form of previous restraint upon printed publications or their circulation including that which had theretofore been effected by these two well known and odious methods It is not intended by anything we have said to suggest that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government
But this is not an ordinary form of tax but one single in kind with a long history of hostile misuse against the freedom of the press
The predominant purpose of the grant of immunity here invoked was to preserve an untrammelled press as a vital source of public information
The newspapers magazines and other journals of the country it is safe to say have shed and continue to shed more light on the public and business
affairs of the nation than any other instrumentality of publicity and since informed public opinion is the most potent of all restraints upon misgovernment the suppression or abridgment of the publicity afforded by a free press cannot be regarded otherwise than with grave concern
The tax here involved is bad not because it takes money from the pockets of the appellees
If that were all a wholly different question would be presented
It is bad because in the light of its history and of its present setting it is seen to be a deliberate and calculated device in the guise of a tax to limit the circulation of information to which the public is entitled in virtue of the constitutional guaranties
A free press stands as one of the great interpreters between the government and the people
To allow it to be fettered is to fetter ourselves Underlining by us The levy imposed by Louisiana was quashed by the Supreme 332 Court of the United States of America in the above case on the ground that it violated the First Amendment to the Constitution of the United States of America since it was of the view that the tax levied in this case was a device to limit the circulation of information
The Court however did not say that no tax could be levied on the press in any event
In Robert Murdock Jr vs Commonwealth of Pennsylvania City of Jeannette1 the Supreme Court of the United States of America declared as unconstitutional and violative of the First Amendment to the Constitution of the United States of America which guaranteed freedom of speech and expression an ordinance which imposed a licence tax on persons canvassing for and soliciting within the city of Jeannette orders for goods paintings pictures wares or merchandise of any kind or persons delivering such articles under orders so obtained or solicited
The petitioners in that case were Jehovah s witnesses  who went about from door to door in the city of Jeannette distributing literature and soliciting people to purchase certain religious books and pamphlets
None of them obtained a licence by paying the prescribed fee and they were convicted for violating the Ordinance by the Superior Court of Pennsylvania
The Supreme Court of the United States of America quashed the conviction holding that the Ordinance violated the First Amendment
Douglas J who wrote the majority opinion observed at pages 1299 and 1300 thus In all of these cases the issuance of the permit or license is dependent on the payment of a license tax
And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues
It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question
It is in no way apportioned
It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the first Amendment
Accordingly it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise
That is almost uniformly recognised as the inherent vice and evil of this flat license tax   1  87 Law
333 The fact that the ordinance is  nondiscriminatory   A is immaterial
The protection afforded by the First Amendment is not so restricted
A license tax certainly does not acquire constitutional validity because it classifies the privileges protected by the First Amendment along with the wares and merchandise of hucksters and peddlers and treats them all alike
Such equality in treatment does not save the ordinance
Freedom of press freedom of speech freedom of religion are in a preferred position Underlining by us
Justice Reed who dissented from the majority observed at page 1306 thus It will be observed that there is no suggestion of freedom from taxation and this statement is equally true of the other State constitutional provisions
It may be concluded that neither in the state or the federal constitutions was general taxation of church or press interdicted
Is there anything in the decisions of this Court which indicates that church or press is free from the financial burdens of government  We find nothing
Religious societies depend for their exemptions from taxation upon state constitutions or general statutes not upon the Federal Constitution
Gibbons vs District of Columbia   29 L ed 680  This Court has held that the chief purpose of the free press guarantee was to prevent previous restraints upon publication
Near vs Minuesota   713 75 L ed 1357  In Grosjean vs American Press Co   250 80 L ed 660 668   it was
 said that the predominant purpose was to preserve an untrammelled press as a vital source of public information In that case a gross receipts tax Oil advertisements in papers with a circulation of more than twenty thousand copies per week was held invalid because a deliberate and calculated device in the guise of a tax to limit the circulation 
There was this further comment It is not intended by anything we have said to suggest 334 that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government
But this is not an ordinary form of tax but one single in kind with a long history of hostile misuse against the freedom of the press
 Id 297 Us 250 80 L ed 668  It may be said however that ours is a too narrow technical and legalistic approach to the problem of state taxation of the activities of church and press that we should look not to the expressed or historical meaning of the First Amendment but to the broad principles of free speech and free exercise of religion which pervade our national way of life
It may be that the Fourteenth Amendment guarantees these principles rather than the more definite concept expressed in the First Amendment
This would mean that as a Court we should determine what sort of liberty it is that the due process clause of the Fourteenth Amendment guarantees against state restrictions on speech and church
Nor do we understand that the Court now maintains that the Federal Constitution frees press or religion of any tax except such occupational taxes as those here levied
Income taxes ad valorem taxes even occupational taxes are presumably valid save only a license tax on sales of religious books
Can it be that the Constitution permits a tax on the printing presses and the gross income of a metropolitan newspaper but denies the right to lay an occupational tax on the distributors of the same papers  Does the exemption apply to book sellers or distributors of magazines or only to religious publications  And if the latter to what distributors  Or to what books  Or is this Court saying that a religious practice of book distribution is free from taxation because a state cannot prohibit the free exercise thereof and a newspaper is subject to the same tax even though the same Constitutional Amendment says the state cannot abridge the freedom of the press  It has never been thought before that freedom from taxation was a perquisite attaching to the privileges of the First Amendment Justice Reed added at pages 1307 and 1308 thus 335 It is urged that such a tax as this may be used readily to restrict the dissemination of ideas This must be conceded but the possibility of misuse does not make a tax unconstitutional
No abuse is claimed here
The ordinances in some of these cases are the general occupation license type covering many businesses
In the Jeannette prosecutions the ordinance involved lays the usual tax on canvassing or soliciting sales of goods wares and merchandise
It was passed in 1898
Every power of taxation or regulation is capable of abuse
Each one to some extent prohibits the free exercise of religion and abridges the freedom of the press but that is hardly a reason for denying the power
If the tax is used oppressively the law will protect the victims of such action Underlining by us Justice Frankfurter who also dissented from the majority observed at pages 1310 and 1311 thus It cannot be said that the petitioners are constitutionally exempt from taxation merely because they may be engaged in religious activities or because such activities may constitute an exercise of a constitutional right 
Nor can a tax be invalidated merely because it falls upon activities which constitute an exercise of a constitutional right
The First Amendment of course protects the right to publish a newspaper or a magazine or a book
But the crucial question is how much protection does the Amendment give and against what is the right protected  It is certainly true that the protection afforded the freedom of the press by the First Amendment does not include exemption from all taxation
A tax upon newspaper publishing is not invalid simply because it falls upon the exeacise of a constitutional right
Such a tax might be invalid if it invidiously singled out newspapers publishing for bearing the burdens of taxation or imposed upon them in such ways as to encroach on the essential scope of a free press
If the Court could justifiably hold that the tax measures in these cases were Vulnerable on that ground I would unreservedly agree
But the 336 Court has not done so and indeed could not Under lining by us In the above case it may be noticed that Douglas J who gave the majority opinion did not say that no tax could be levied at all on a press but he did not approve of a uniform license tax unrelated to the scope of the activities of the persons who had to beat it
The dissenting opinions have clearly stated that the press does not enjoy any immunity from taxation
They however say that the taxation should not encroach upon the essential scope of a free press
We may usefully refer here to a passage in the foot note given below the Essay No 84 by Alexander Hemilton in The Federalist 
it reads It cannot certainly be pretended that any degree of duties however low would be an abridgment of the liberty of the press
We know that newspapers are taxed in Great Britain and yet it is notorious that the press nowhere enjoys greater liberty than in that country
And if duties of any kind may be laid without a violation of that liberty it is evident that the extent must depend on legislative discretion regulated by public opinion  At this stage we find it useful to refer to a decision of the Privy Council in Attorney General  Anr
vs Antigua Times Ltd Where the Judicial Committee of the Privy Council was called upon to decide about the validity of the imposition of a licence fee of p S 600 annually on the publisher of a newspaper under the News papers Registration Amendment Act 1971
Section 10 of the Constitution of Antigua read as follows 10
1 Except with his own consent no person shall be hindered in the enjoyment of his freedom of expression and for the purposes of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference and freedom from interference with his correspondence and other means of communication 1
337 2 Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision a that is reasonably required i in the interests of defence public safety public order public morality or public health or ii for the purpose of protecting the reputations rights and freedoms of other persons or the private lives of persons concerned in legal proceedings preventing the disclosure of information received in confidence maintaining the authority and independence of the courts or regulating telephony telegraphy posts wireless broadcasting television or other means of communication public exhibitions or public entertainments or b that imposes restrictions upon public officers Lord Fraser who delivered the judgment of the Privy Council upheld the levy of the licence fee as being reasonably required in the interests of defence and for securing public safety etc
referred to in section 10 2 a i of the Constitution of Antigua The learned Lord observed in that connection thus Revenue requires to be raised in the interests of defence and for securing public safety public order public morality and public health and if this tax was reasonably required to raise revenue for these purposes or for any of them then section IB is not to be treated as contravening the Constitution
In some cases it may be possible for a court to decide from a mere perusal of an Act whether it was or was not reasonably required
In other cases the Act will not provide the answer to that question
In such cases has evidence to be brought before the court of the reasons for the Act and to show that it was reasonably required  Their Lordships think that the proper approach to the question is to presume until the contrary appears or is shown that all Acts passed by the Parliament of Antigua were reasonably required
This presumption will be rebutted if the statutory provisions in question are to use the words of Louisy J so arbitrary as to compel the conclusion that it does not involve an exertion of the 338 taxing power but constitutes in substance and effect the direct execution of a different and forbidden power  y the amount of the licence fee was so manifestly excessive its to lead to the conclusion that the real reason for its imposition was not the raising of revenue but the preventing of the publication of newspapers then that would justify the conclusion that the law was not reasonably required the raising of revenue
In there Lordships  opinion the presumption that the newspapers Registration Amendment Act 1971 was reasonably required has not been reputed and they do not regard the amount of the licence fee as manifestly excessive and of such a character as to lead to the conclusion that section IB was not enacted to raise revenue but for some other Purpose Underlining by us Here again it is seen that the Privy council was of the view that the law did not forbid the levy of fee on the publisher of a newspaper but it would be open to challenge if the real reason for its imposition was not the raising of revenue but the preventing of the publication of newspaper
At this stage it is necessary to refer to a forceful argument addressed before us
It was urged on behalf of the petitioners that the recognition of the power of the Government to levy taxes of any kind on the newspaper establishments would ring in the death knell of the freedom of press and would be totally against the spirit of the Constitution
It is contended that the Government is likely to use it to make the press subservient to the Government
It is argued that when once this power is conceded newspapermen will have to run after the Government and hence it ought not to be done
This raises a philosophical question Pressversus Government We do not think it is necessary for the press to be subservient to the Government
As long as this Court sits  newspapermen need not have the fear of their freedom being curtailed by unconstitutional means
It is however good to remember some statements made in the past by some wise men connected with newspapers in order to develop the culture of an independent press
Hazlitt advised editors to stay in their garrets and avoid exposing themselves to the sub leties of power
Walter Lippman in his address to the International Press Institute some 339 years ago said that the danger to the independence and integrity of journalists did not come from the pressures that might A be put on them it was that they might be captured and capitivated by the company they keep
Arthur Krock after 60 years of experience said that it is true that in most cases the price of friendship with a politician is so great for any newspaperman to pay 
A P Wadsworth of the Manchester Guardian said that no editor should ever be on personal terms with our leaders for fear of creating a false sense of relation of confidence James Margach says that when leading media figures see too much rather than too little of Prime Minister that the freedom of press is endangered  Lord Salisbury told Buckle a famous editor in England you are the first person who has not come to see me in the last few days who is not wanting something at my handsplace or decoration or peerage
You only want information Charles Mitchell wrote in Newspaper Directory 
The Press has row so great and so extensive an influence on public opinion that its conductors should be GENTLEMAN in the true sense of the word
They should be equally above corruption and intimidation incapable of being warped by personal considerations from the broad path of truth and honour superior to all attempts at misrepresenting or mystifying public events 
If the press ceases to be independent the healthy influence of the press and public opinion will soon be substituted by the traditional influences of landlordism and feudalism
The press lords should endeavour to see that their interest do not come into conflict with their duties
All this is said only to show that Government alone may not always be the culprit in destroying the independence of the press
Be that as it may it is difficult to grant that merely because the Government has the power to levy taxes the freedom of press would be totally lost
As stated earlier the court is always there to hold the balance even and to strike down any unconstitutional invasion of that freedom
Newspaper industry enjoys two of the fundamental rights namely the freedom of speech and expression guaranteed under Article 19 l a and the freedom to engage in any profession occupation trade industry or business guaranteed under Article 19 1 g of the Constitution the first because it is concerned with the field of expression and communication and the second because communication has become an occupation or profession and because there is on invasion of trade business and industry 340 into that field where freedom of expression is being exercised
While there can be no tax on the right to exercise freedom of expression tax is leviable on profession occupations trade business and industry
Hence tax is leviable on newspaper industry
But when such tax transgresses into the field of freedom of expression and stifles that freedom it becomes unconstitutional
As long as it is within reasonable limits and does not impede freedom of expression it will not be contravening the limitations of Article 19 2
The delicate task of determining when it crosses from the area of profession occupation trade business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the courts
The petitioners however have placed strong reliance on the Sakal s case supra and the Bennett Coleman s case supra in support of their case that any tax on newsprint which is the most important component of a newspaper is unconstitutional
They have drawn our attention to the following passage in the decision in Sakal s case supra which is at page 863  It may well be within the power of the state to place in the interest of the general public restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgement on the same grounds as are set out in cl
6 of article 19
Therefore the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen
Freedom of speech can be restricted only in the interests of the security of the State friendly relations with foreign State public order decency or morality or in relation to contempt of court defamation or incitement to an offence
It cannot like the freedom to carry on business be curtailed in the interest of the general public
If a law directly affecting it is challenged it is no answer that the restrictions enacted by it are justifiable under cls
3 to 6
For the scheme of article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjects and the object for securing which this could be done
A citizen 341 is entitled to enjoy each and every one of the freedoms together and cl
1 does not prefer one freedom to A another
That is the plain meaning of this clause
It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom
All the greater reason therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction another freedom
 In Bennett Coleman s case supra the question which arose for consideration related to the validity of a restriction imposed under the newsprint policy which had certain objectionable features such as i that no newspaper or new edition could be started by a common owner ship unit even within the authorised quota of newsprint ii that there was a limitation on the maximum number of pages no adjustment being permitted between circulation and pages so as to increase pages iii that a big newspaper was prohibited and prevented from increasing the number of pages page area and periodicity by reducing circulation to meet the requirement even within its admissible quota etc
The majority held that the fixation of page limit had not only deprived the petitioners of their economic vitality but also restricted their freedom of expression
It also held that such restriction of pages resulted in reduction of advertisement revenue and thus adversely affected the capacity of a newspaper to carry on its activity which is protected by Article 191a of the Constitution
We have carefully considered the above two decisions
In the first case the Court was concerned with the newspaper price page policy and in the second the newsprint policy imposed by the Government had been challenged
Neither of them was concerned with the power of Parliament to levy tax on any goods used by the newspaper industry As we have observed earlier taxes have to be levied for the support of the Government and newspapers which derive benefit from the public expenditure cannot disclaim their liability to contribute a fair and reasonable amount to the public exchequer
What may however have to be observed in levying a tax on newspaper industry is that it should not be a over burden on newspapers which constitute the Fourth Estate of the country
Nor should it single out newspaper industry for harsh treatment
A wise administrator should realise that the imposition of a tax like the customs duty on 342 new newsprint is an imposition on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself about the world around him The public interest in freedom of discussion of which the freedom of the press is one aspect stems from the requirement t that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves 
Per Lord Simon of Glaisdale in Attorney General vs Times Newspapersl
Freedom of expression as learned writers have observed has four broad social purposes to serve i it helps an individual to attain self fulfilment ii it assists in the discovery of truth iii it strengthens the capacity of an individual in participating in decision making and iv it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change
All members of society should be able to form their own beliefs and communicate them freely to others
In sum the fundamental principle involved here is the people s right to know
Freedom of speech and expression should therefore receive a generous support from all those who believe in the participation of people in the administration
It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on other matters concerning newspapers industry than while levying taxes on matters
It is true that this Court has adopted a liberal approach while dealing with fiscal measures and has upheld different kinds of taxes levied on property business trade and industry as they were found to be in the public interest
But in the cases before us the Court is called upon to reconcile the social interest involved in the freedom of speech and expression with the public interest involved in the fiscal levies imposed by the Government specially because newsprint constitutes the body if expression happens to be the soul
In view of the intimate connection of newsprint with the freedom of the press the tests for determining the vires of a statute taxing newsprint have therefore to be different from the tests usually adopted for testing the vires of other taxing statutes
In the case of ordinary taxing statutes the laws may be questioned only if they are either openly confiscatory or a colourable device to confiscate
On the other hand in the case of a tax on newsprint 1 343 it may be sufficient to show a distinct and noticeable burdensomeness clearly and directly attributable to the tax
A While we therefore cannot agree with the contention that no tax can be levied on newspaper industry we hold that any such levy is subject to review by courts in the light of the provisions of the V Are the impugned notifications issued under section 25 of the beyond the reach of the Administrative Law
It is argued on behalf of the Government that a notification issued under section 251 of the granting modifying or withdrawing an exemption from duty being in the nature of a piece of subordinate legislation its validity cannot be tested by the Court by applying the standards applicable to an administrative action
Reliance is placed on the decision of this Court in Narinder Chand Hem Raj  Ors
vs Lt Governor Administrator
Union Territory Himachal Pradesh  Ors
1 in support of the above contention
In that case the appellants were wine merchants carrying on business in Simla
At the auction held for the purpose of granting the privileges to sell the Indian made foreign liquor the appellants were the highest bidders
It appears that before the auction was held the Collector of Excise and Taxation had announced that no sales tax would be liable to be paid on the sale of liquor and despite this assurance the Government had levied and collected from the appellants a certain amount by way of sales tax
The appellants prayed for the issue of a writ to the Governments restraining them from levying any sales tax and to refund what had been recovered from them by way of sales tax already
It was contended on behalf of the Government of Himachal Pradesh that non collection of sales Tax possible only on the issue of a notification by the Government pursuant to its statutory power under the Punjab General Sales Tax Act which was in force in the area in question shifting liquor  which was in Schedule A  to Schedule B  to the Punjab General Sales Tax Act and that such a notification could not be issued because the Central Government had not given its requisite approval
Hence it was urged by the Government that since sales tax had been imposed by law on all items in Schedule A  it could not disobey the mandate of law
It further contended that the Court could not issue a mandamus to the Government to issue a notification to amend the Schedules to the statute as the act of issuing such a notification was a legislative act and no writ could be issued to a 344 legislative body or a subordinate Legislative body to a make a law or to issue a notification as the case may be which would have the effect of amending a law in force
This Court upheld the contention of the Government
The Court said Our attention has not been drawn to any provision in that Act empowering the Government to exempt any assessee from payment of tax
Therefore it is clear that appellant was liable to pay the tax imposed under the law
What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not
We shall assume for our present purpose that it had such a power
The power to impose a tax is undoubtedly a legislative power
That power can be exercised by the legislature directly or subject to certain conditions the legislature may delegate the power to some other authority
But the exercise of that power whether by the legislature or by its delegate is an exercise of a legislative power
The fact that the power was delegated to the executive does not convert that power into an executive or administrative power
No Court can issue a mandate to a legislature to enact a particular law
Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact
The relief as framed by the appellant in his writ petition does not bring out the real issue calling for determination
In reality he wants this Court to direct the Government to delete the entry in question from Schedule A and include the same in Schedule B article 265 of the Constitution lays down that no tax can be levied and collected except by authority of law
Hence the levy of a tax can only be done by the authority of law and not by any executive order
Unless the executive is specially empowered by law to give any exemption it cannot say that it will not enforce the law as against a particular person 
No court can give a direction to a Government to refrain from enforcing a provision of law
Under these circumstances we must held that the relief asked for by the appellant cannot be granted Underlining by us 345 The above decision does not in fact support the contention of the Government in the cases before us
It is noteworthy that the Court in the passage extracted above has made a distinction between the amendment of the Schedule to the Punjab General Sales Tax Act by the issue of a notification by the Government of Himachal Pradesh in exercise of its power delegation by the legislature and the power of that Government to grant exemption under a power to grant K exemption
In the present cases we are concerned with a power to grant exemption conferred on Government by section 25 of the and not with a power to amend the Act by means of a notification
Moreover this was just a case relating to business in liquor
We shall assume for purposes of these cases that the power to grant exemption under section 25 of the is a legislative power and a notification issued by the Government thereunder amounts to a piece of subordinate legislation
Even then the notification is liable to be questioned On the ground that it is an unreasonable one
The decision of this Court in Municipal Corporation of Delhi vs Birla Cotton Spinning and Weaving Mills Delhi  Anrl has laid down the above principle
In that case Wanchoo CJ while upholding certain taxes levied by the Corporation of Delhi under section 150 of the Delhi Municipal Corporation Act 1957 observed thus Finally there is another check on the power of the Corporation which is inherent in the matter of exercise of power by subordinate public representative bodies such as municipal boards
In such cases if the act of such a body in the exercise of the power conferred on it by the law is unreasonable the courts can hold that such exercise is void for the unreasonableness
This principle was laid down as far back as 1898 in Kruse vs Johnson But it appears that the principle enunciated in Kruse vs Johnson 2 is not being applied so stringently in England now
A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a com 1  2 346 petent legislature
Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned
In addition it may also be questioned on the ground that it does not conform to the statute under which it is made
It may further be questioned on the ground that it is contrary to some other statute
That is because subordinate legislation must yield to plenary legislation
It may also be questioned on the ground that it is unreasonable unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary
In England the judges would say Parliament never intended authority to make such rules
They are unreasonable and ultra vires
The present position of law bearing on the above point is stated by Diplock LJ in Mixnam Properties Ltd vs Chertsey UDC1 thus The various grounds upon which subordinate legislation has sometimes been said to be void  can I think today be properly regarded as being particular applications of the general rule that subordinate legislation to be valid must be shown to be within the powers conferred by the statute
Thus the kind of unreasonableness which invalid dates a by law is not the antonym of reasonableness  in the sense of which that expression is used in the common law but such mainfest arbitrariness injustice or partiality that a court would say Parliament never intended to give authority to make such rules they are unreasonable and ultra vires  If the courts can declare subordinate legislation to be invalid for uncertainty  as distinct from unenforceable this must be because Parliament is to be presumed not to have intended to authorise the subordinate legislative authority to make changes in the existing law which are uncertain  Prof Alan Wharam in his Article entitled Judicial Control of Delegated Legislation The Test of Resonableness  in 36 modern Law Review 611 at pages 622 23 has summarised the present position in England as follows i It is possible that the courts might invalidate statutory instrument on the grounds of unreasonableness or uncertainty vagueness or aribitrariness but the writer s 1 347 view is that for all practical purposes such instruments must be read as forming part of the parent statute subject only to the ultra vires test
ii The courts are prepared to invalidate by laws or any other form of legislation emanating from an elected representative authority on the grounds of unreasonableness uncertainty or repugnance to the ordinary law but they are reluctant to do so and will exercise their power only in clear cases
iii The courts may be readier to invalidate by laws passed by commercial undertakings under statutory power although cases reported during the present century suggest that the distinction between elected authorities and commercial undertakings as explained in Kruse vs Johnson might not now be applied so stringently
iv As far as subordinate legislation of non statutory origin is concerned this is virtually obsolete but it is clear from In re French Protestant Hospital 1951 ch
567 that it would be subject to strict control See also HWR Wade Administrative Law 5th Edn pp 747 748
In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution
In India any enquiry into the vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned to the ground that it is contrary to the statute under which it is made to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution
That subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned has been held by this Court in The Tulsipur Sugar Co Ltd vs The Notified Area Committee Tulsipurl Rameshchandra Kachardas Porwal  Ors
vs State of 1 1980 2 SCR 1111
348 Maharashtra  Ors etc1
and in Bates vs Lord Hailsham of St Marylebone  Ors2
A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary powers
In the latter case the question may be considered on all grounds on which administrative action may be questioned such as nonapplication of mind taking irrelevant matters into consideration failure to take relevant matters into consideration etc
On the facts and circumstances of a case a subordinate legislation be may struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or say the Constitution
This can only be done on the ground that it doe not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19 1 a of the Constitution
It cannot no doubt be done merely on the ground that it is not reasonable or that it has not taken n into account relevant circumstances which the Court considers relevant
We do not therefore find much substance in the contention that the courts cannot at all exercise judicial control over the impugned notifications
In cases where the power vested in the Government is a power which has got to be exercised in the public interest as it happens to be here the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution
The fact that a notification issued under section 25 1 of the is required to be laid before Parliament under section 159 thereof does not make any substantial difference as regards the jurisdiction of the court to pronounce on its validity
The power to grant exemption should however be exercised in a reasonable way
Lord Greene MR has explained in Associated Provincial Picture Houses Ltd vs Wednesbury CorporationU what a reasonable way  means as follows It is true that discretion must be exercised reason ably
Now what does that mean  Lawyers familiar with 1  2 3  349 the phraseology used in relation to exercise of statutory A discretions often use the word unreasonable  in a rather comprehensive sense
It has frequently been used and is frequently used as a general description of the things that must not be done
For instance a person entrusted with a discretion must so to speak direct himself properly in law
He must call his own attention to the matters which he is bound to consider
He must exclude from his consideration matters which are irrelevant to what he has to consider
If he does not obey those rules he may truly be said and often is said to be acting unreasonably 
Similarly there may be some thing so absurd that no sensible person could ever dream that it lay within the powers of the authority
Warrlngton LJ in short Y Poole Corporation gave the example of the red haired teacher dismissed because she had red hair
This is unreasonable in one sense
In another it is so unreasonable that it might almost be described as being done in bad faith and in fact all these things run into one another
 Hence the claim made on behalf of the Government that the impugned notifications are beyond the reach of the administrative law cannot be accepted without qualification even though all the grounds that may be urged against an administrative order may not be available against them
Now the notifications issued on March 1 1981 and February 28 1982 under section 25 of the which grant exemptions from payment of certain duty beyond what is mentioned in them are issued by the executive Government
They were issued in substitution of earlier notifications which had granted total exemption
Such notifications have to be issued by the Government after taking into consideration all relevant factors which bear on the reasonableness of the levy on the news print
The Government should strike a just and reasonable balance between the need for ensuring the right of people to freedom of speech and expression on the one hand and the need to impose social control on the business of publication of a newspaper on the other
In other words the Government must at all material times be conscious of the fact that it is dealing with an activity protected by Article 19 1 a of the Constitution 350 which is vital to our democratic existence
In deciding the reasonableness of restrictions imposed on any fundamental right the court should take into consideration the nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed the disproportion of the imposition and the prevailing conditions at the relevant time including the social values whose needs are sought to be satisfied by means of the restrictions
See the State of Madras vs VG Raol
The restriction in question is the burden of import duty imposed on newsprint
Section 25 of the under which the notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of the public interest
It provides that if the Central Government is satisfied that it is necessary in the public interest so to do it may exempt generally either absolutely or subject to such conditions goods of any description from the whole or any part of the customs duty leviable thereon
The Central Government may if it is satisfied that in the public interest so to do exempt from the payment of duty by a special order in each case under circumstances of an exceptional nature to be stated in such order any goods on which duty is leviable
The power exercisable under section 25 of the is no doubt discretionary but it is not unrestricted It is useful to refer here to the observations of Lord Denning MR in Breen vs Amalgamated Engineering Union2 at page 190 read thus The discretion of a statutory body is never unfet tered
It is a discretion which is to be exercised according to law
That means at least this the statutory body must be guided by relevant considerations and not by irrelevant
If its decision is influenced by extraneous considerations which it ought not to have taken into account then the decision cannot stand
No matter that the statutory body may have acted in good faith nevertheless the decision will be set aside
That is established by Pad field vs Minister of Agriculture Fisheries and Food 1968 AC 997 which is a landmark in modern administrative law
 In any event any notification issued under a statute also 1  2 351 being a law  as defined under Article 13 3 a of the Constitution is liable to be struck down if it is contrary to any of the fundamental rights guaranteed under Part III of the Constitution
VI Has there been proper exercise of power under section 25 1 of the  Freedom of press as the petitioners rightly assert means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers
The most important raw material in the production of a newspaper is the newsprint
The cost and availability of newsprint determine the price size and volume of the publication and also the quantum of news views and advertisements appearing therein
It is not disputed that the cost of newsprint works out to nearly 60 of the cost of production of newspaper
In the case of a big newspaper the realisation by the sale of newspaper is just about 40 of its total cost of production
The remaining cost is met by advertisements revenue which is about 40 by revenue from waste sales and job work which comes to about 5 and revenue from other sources such as the income from properties and other investments of the newspaper establishment
These figures have been derived from the statement furnished by one of the big newspapers
The case of all other big newspapers may be more or less the same
The financial and other difficulties felt by the newspaper press in securing newsprint in recent years which have become an international phenomenon are set out in the Final Report of the International Commission for the Study of Communication Problems referred to above at page 141 thus Extremely serious on an international scale has been the effect of high costs of important materials or facilities    
Paper is a material consumed in vast quantities whose price in recent years has spiralled out of proportion to the general world wide inflation 
As for newsprint its price on world markets rose from a datum figure of 100 in 1970 to 329 in May 1977 and has continued to rise since
A sad by product of this situation has been the intro 352 duction of a covert form of censorship as some Governments limit the import of newsprint distribute it by official allocation schemes and use these schemes to discriminate against the opposition newspapers
 In Chapter 4 of the same Report at page 100 the Inter national Commission has observed thus While newspapers which are commercial enterprises expect to sustain themselves by sales and advertising they are not always viable on this traditional basis
Capital and profits from other media and from business in general are often injected into the newspaper industry
In many cases the financing or at least the deficits are covered by governments or political bodies
Assistance from the State has taken various forms including tax concessions not enjoyed by other industries reduced postal and telephone rates guaranteed Government advertising and subsidies to the price of newsprint
Although the press is suspicious of Government involvement in its affairs a desire to preserve variety by keeping the weaker papers alive has led to consideration of various schemes
Direct grants to papers in need are made in seven European nations
Smaller newspapers and some parts of the quality or specialized press have experienced difficulties from a contraction of operations and size which has led to limitations on the variety of information sources
This has induced many governments to examine the possibility of subsidies to help keep newspapers alive or to establish new ones in monopoly circulation areas and to promote plurality and variety in general
If any duty is levied on newsprint by Government It necessarily has to be passed on to the purchasers of newspapers unless the industry is able to absorb it
In order to pass on the duty to the consumer the price of newspapers has to be increased
Such increase naturally affects the circulation of newspapers adversely
In Sakal s case supra this Court has observed thus 353 The effect of raising the selling price of newspaper A has been considered by the Press Commission
In Paragraph 164 of the Report it is observed The selling price of a paper would naturally have an important effect on its circulation
In this connection we have examined the effect of price cuts adopted by two English papers at Bombay on the circulation of those two papers as well as of the leading paper which did not reduce its price
Prior to 27th October 1952 Times of India which had the highest circulation at Bombay was being sold at Re 0 2 6 while Free Press Journal and National Standard which rank next in circulation were being sold for Re 0 2 0
On 27th October 1952 Free Press Journal reduced its price to Rs 0 10 and within a year had claimed to have doubled its circulation
On 1st July 1953 the National Standard was converted into a Bombay edition of Indian Express with a selling price of Rs 0 1 6
Within six months it too claimed to have doubled its circulation During this period the Times of India which did not reduce its selling price continued to retain its readership
Thus it would appear that Free Press Journal and Indian Express by reducing their price have been able to tap new readership which was latent in the market but which could not pay the higher prices prevailing earlier  Though the prices of newspapers appear to be on the low side it is a fact that even so many people find it difficult to pay that small price
This is what has been pointed out by the Press Commission in Paragraph 52 of its report
According to it the most common reason for people in not purchasing newspapers is the cost of the newspaper and the inability of the household to spare the necessary amount
This conclusion is based upon the evidence of a very large number of individuals and representatives of Associations
We would therefore be justified in relying upon it and holding that raising the price of newspaper even by a small amount such as one 354 nP in order that its present size be maintained would adversely affect its circulation
 This is not a novel phenomenon
A stamp tax on newspapers came to be levied in England in 1712
It virtually crippled the growth of the English press and thus became unpopular
There was a lot of agitation against the said tax
But on its abolition in 1861 the circulation of newspapers increased enormously
The following account found in the Encyclopaedia Britannica 1962 Vol
16 at page 339 is quite instructive Abolition of Taxes on knowledge
The development of the press was enormously assisted by the gradual abolition of the taxes on knowledge and also by the introduction of a cheap postal system 
To Lord Lytton the novelist and politician and subsequently to Milner Gibson and Richard Cobden is chiefly due the credit of grappling with this question in Parliament to secure first the reduction of the tax to a penny in 1836 and then its total abolition in 1855
The number of news papers established from the early part of 1855 when the repeal of the duty had become a certainty and continuing in existence at the beginning of 1857 amounted to 107 26 were metropolitan and 81 provincial
The duties on paper itself were finally abolished in 1861
The abolition of the stamp taxes brought about such reductions in the prices of newspapers that they speedily began to reach the many instead of the few
Some idea of the extent of the tax on knowledge imposed in the early 19th century may be gathered from the fact that the number of stamps issued in 1820 was nearly 29400000 and the incidence of the advertisement tax fixed at 3s
in 1804 made it impossible for the newspaper owner to pass on the stamp tax to the advertiser
In 1828 the proprietors of the Times had to pay the state more than 68000 in stamp and advertisement taxes and paper duty
But after the reduction of the stamp tax in 1836 from four pence to one penny the circulation of English news papers based on the stamp returns rose from 39000000 to 122000000 in 1854
 355 The Second Press Commission in its Report Vol II at pages 182 183 has stated that the figures of circulation of newspaper A compiled by the Audit Bereau of Circulation ABC for the period January to June 1981 indicated that the circulation of newspapers in the period January to June 1981 was 19 lower than in the previous six months period The decline in the circulation of dailies was more in the case of very big newspapers with circulation of one lakh and above than in the case of smaller papers
The Commission said that the decline in circulation would appear to be attributable mainly to two factors increase in the retail price of newspapers in September October 1980 and again in April May 1981 and that the increase in retail prices appeared to have become necessary following continuing increase in newsprint prices in the last few years including levy of import duty in 1981 and increase in wages and salaries cost on account of Palekar Award
Of these factors which were responsible for increase in prices the imposition of import duty on newsprint was on account of State action
This aspect of the matter is not seriously disputed by the Government
The pattern of the law imposing customs duties and the manner in which it is operated to a certain extent exposes the citizens who are liable to pay customs duties to the vagaries of executive discretion
While parliament has imposed duties by enacting the and the  the Executive Government is given wide power by section 25 of the to grant exemptions from the levy of Customs duty
It is ordinarily assumed that while such power to grant exemptions is given to the Government it will consider all relevant aspects governing the question whether exemption should be granted or not
In the instant case in 1975 when the was enacted 40 ad valorem was levied on newsprint even though it had been exempted from payment of such duty
If the exemption had not been continued newspaper publishers had to pay 40x6 ad valorem customs duty on the coming into force of the 
Then again in 1982 by the Finance Act 1982 an extra levy of Rs 1000 per tonne was G imposed in addition to the original 40 ad valorem duty even though under the exemption notification the basic duty had been fixed at 10 of the value of the imported newsprint
No information is forthcoming from the Government as to whether there was any material which justified the said additional levy
It is also not clear why this futile exercise of levying an additional duty of 356 Rs 1000 per tonne was done when under the notification issued under section 25 of the on March 1 1981 which was in force then customs duty on newsprint above 10 ad valorem had been exempted
As mentioned elsewhere in the course of this judgment while levying tax on an activity which is protected is also by Article 191a a greater degree of care should be exhibited
While it is indisputable that the newspaper industry should also bear its due share of the total burden of taxation alongwith the rest of the community when any tax is specially imposed on newspaper industry it should be capable of being justified as a reasonable levy in court when its validity is challenged
In the absence of sufficient material the levy of 40 plus Rs 1000 per tonne would become vulnerable to attack
If the levy imposed by the statute itself fails there would be no need to question the notifications issued under section 25 of the 
But having regard to the prevailing legislative practice let us assume that in order to determine the actual levy we should take into consideration not merely the rate of duty mentioned in the but also any notification issued under section 25 of the which is in force
Even then the reasons given by the Government to justify the total customs duty of 15 levied from March 1 1981 or Rs 825 per tonne as it is currently being levied appear to be inadequate
In the Finance Minister s speech delivered on the floor of the Lok Sabha in 1981 the first reason given for the levy of 15 duty was that it was intended to promote a measure of restraint in the consumption of imported newsprint and thus help in conserving foreign exchange
This ground appears to be not tenable for two reasons
In the counter affidavit filed on behalf of the Government it is stated that the allegation that the position of foreign exchange reserve is comfortable is irrelevant it
This shows that nobody in Government had over taken into consideration the effect of the import of newsprint on the foreign exchange reserve before issuing the notifications levying 15 duty
Secondly no newspaper owner can import newsprint directly newsprint import is canalised through the State Trading Corporation
If excessive import of newsprint adversely affects foreign exchange reserve the State Trading Corporation may reduce the import of newsprint and allocate lesser quantity of imported newsprint to newspaper establishments
There is however no need to impose import duty with a view to curbing excessive import of newsprint
In the Finance Minister s speech there is no reference to the capacity of the newspaper industry to bear the levy 15 of 357 duty
In the counter affidavit it is asserted that the extent of A burden faced by the newspaper industry in India is irrelevant to the levy of import duty on newsprint
This clearly shows again that the Government had not also considered a vital aspect of the question before withdrawing the total exemption which was being enjoyed by newspaper industry till March 11981 and imposing 15 duty on newsprint
The petitioners have alleged that the imposition of customs duty has compelled them to reduce the extent of the area of the newspapers for advertisements which supply a major part of the sinews of a newspaper and consequently has adversely affected their revenue from advertisements
It is argued by them relying upon the ruling in Bennett Coleman s case supra that Article 191 a is infringed thereby
Our attention is drawn to the following passages in Bennett Coleman s case supra which are at pages 777778 and at page 782 Publications means dissemination and circulation The press has to carry on its activity by keeping in view the class of readers the conditions of labour price of material availability of advertisements size of paper and the different kinds of news comments and views and advertisements which are to be published and circulated The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 192
If the area of advertisement is restricted
price of paper goes up
In the price goes up circulation will go down
This was held in Sakal Papers Case supra to be the direct consequence of curtailment of advertisement
The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression
This freedom is violated by placing restraints upon something which is an essential part of that freedom
A restraint on the number of pages a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 191a on the aspects of propagation publication and circulation 
The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners  II 358 fundamental rights have been infringed by the restrictions on page limit prohibition against new newspapers and new editions
The effect and consequences 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
The direct effect is upon growth of newspapers through pages
The direct effect is that newspapers are deprived of their area of advertisement
The direct effect is that they are exposed to financial loss
The direct effect is that freedom of speech and expression is infringed
 In meeting the above contention the Government relying on the decision in Hamdard Dawakhana  Wakf  Lal Kuan Delhi  Anr vs Union of India  Ors1 has pleaded in defence of its action that the right to publish commercial advertisement is not part of freedom of speech and expression
We have carefully considered the decision in Hamdard Dawakhana s case supra
The main plank of that decision was that the type Of advertisement dealt with there did not carry with it the protection of Article 191a
On examining the history of the legislation the surrounding circumstances and the scheme of the Act which had been challenged there namely the 21 of 1954 the Court held that the object of that Act was the prevention of self medication and self treatment by prohibiting instruments which may be used to advocate the same or which tended to spread the evil
The Court relying on the decision of the American Supreme Court in Lewis J Valentine vs FJ Chresten sen 2 observed at pages 687 689 thus It cannot be said that the right to publish and distribute commercial advertisements advertising an individual s personal business is a part of freedom of speech guaranteed by the Constitution
In Lewis Valentine vs F
Chrestensen it was held that the constitutional right of free speech is not infringed by prohibiting the distribution in city streets of handbills bearing on one side a protest against action taken by public officials and on the other advertising matter
The object of affixing of the protest to the 1  2  359 advertising circular was the evasion of the prohibition of a city Ordinance forbidding the distribution in the city streets of commercial and business advertising matter
Mr Justice Roberts delivering the opinion of the court said This Court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that though the states and municipalities may appropriately regulate the privilege in the public interest they may not unduly burden or prescribe its employment in these public thoroughfares
We are equally clear that the Constitution imposed no such restraint on government as respects purely commercial advertising y 
If the respondent was attempting to use the streets of New York by distributing commercial advertising the prohibition of the Code provisions was lawfully invoked against such conduct
 It cannot be said therefore that every advertisement is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas
In every case one has to see what is the nature of the advertisement and what activity falling under article 19I it seeks to further
The advertisements in the instant case relate to commerce or trade and not to propagating of ideas and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within article 191a
The main purpose and true intent and aim object and scope of the Act is to prevent self medication or self treatment and for that purpose advertisement commending certain drugs and medicines have been prohibited
Can it be said that this is an abridgement of the petitioners right of free speech  In our opinion it is not
Just as in Chamarbaugwalla s case  it was said that activities undertaken and carried on with a view to earning profits eg the business of betting and gambling will not be protected as falling within the guaranteed right of carrying on business or trade so it cannot be said that an advertisement commending drugs and substances an 360 appropriate cure for certain discases is an exercise of the right of freedom of speech
 In the above said case the Court was principally dealing with the right to advertise prohibited drugs to prevent self medication and self treatment
That was the main issue in the case
It is no doubt true that some of the observations referred to above go beyond the needs of the case and tend to affect the right to publish all commercial advertisements
Such broad observations appear to have been made in the light of the decision of the American Court in Lewis J Valentine vs F J Chrestensen supra But it is worthy of notice that the view expressed in this American case has not been fully approved by the American Supreme Court itself in its subsequent decisions
We shall refer only to two of them
In his concurring judgment in William B Cammarano v United States of America1 Justice Douglas said  Valentine vs Chrestensen held that business of advertisements and commercial matters did not enjoy the protection of the First Amendment made applicable to the States by the Fourteenth
The ruling was casual almost off hand
And it has not survived reflection
In Jeffrey Gole Bigelow vs Commonwealth of Virginia2 the American Supreme Court held that the holding in Lewis J Valentine vs FJ Chrestensen supra was distinctly a limited one
In view of the foregoing we feel that the observations made in the Hamdard Dawakhana s case supra are too broadly stated  and the Government cannot draw much support from it
We ate of the view that all commercial advertisements cannot be denied the protection of Article 19 1 a of the Constitution merely because they are issued by businessmen
In any event the Government cannot derive any assistance from this case to sustain the impugned notifications
It was next urged on behalf of the Government that the levy of customs duty on newsprint was not strictly a levy on newsprint as such since 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 end expression by virtue of the levy of customs duty on newsprint
Reliance was placed in support of the above contention 1  3 L ed 2d 462 2  44 L ed 2d 600 at 610 361 On the decision in In re Sea Customs Actl That decision was A rendered on a reference made by the President under Article 143 of the Constitution requesting this Court to record its opinion on the question whether the Central Government could levy customs duty on goods imported by a State
The contention of the majority of the States in that case was that the goods imported by them being their property no tax by way of customs could be levied by reason of Article 289 t of the Constitution which exempted the property of a State from taxation by the Union
This Court majority 5 minority 4 held that in view of clause 1 of Article 289 which was distinct from clause 2 thereof which provided that nothing in clause 1 of Article 289 would prevent the Union from imposing or authorising the imposition of any tax to such extent if any as Parliament might by law provide in respect of a trade or business of any kind carried on by or on behalf of a State or any operations connected therewith or any property used or occupied for the purposes of such trade or business or any income accruing or arising in connection therewith and the other provisions of the Constitution which enabled the Union to levy different kinds of taxes customs duty levied on the importation of goods was only a to levied on international trade and not on property
The Court further held that the immunity granted under Article 289 1 in favor of States had to be restricted to taxes levied directly on property and even though customs duties had reference to goods and commodities they were not taxes on property and hence not within the exemption in Article 289 1
The above decision is again of very little assistance to the Government since 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 l and Article 19 1 a and 2 of the Constitution
Hence the levy cannot be justified merely on the ground that it was not on any property of the publishers of newspapers
Our attention has been particularly drawn to the statement of the Finance Minister that one of the considerations which prevailed upon the Government to levy the customs duty was that the newspapers contained piffles 
A piffle  means foolish nonsense
It appears 1  362 that one of the reasons for levying the duty was that certain writings in newspapers appeared to the Minister as piffles 
Such action is not permissible under our Constitution for two reasons i that the judgment of the Minister about the nature of writings cannot be a true description of the writings and ii that even if the writings are piffles it cannot be a ground for imposing a duty will whiohhinder circulation of newspapers
In this connection it is useful to refer to the decision of the American Supreme Court in Robert E Hannegan vs Esquire Incl in which it was held that a publication could not be deprived of the benefit of second class mailing rates accorded to publications disseminating information of a public character or devoted literature the sciences arts or some special industry because its contents might seem to the Postmaster General by reason of vulgarity or poor taste not to contribute to the public good
Justice Douglas observed in that decision thus It is plain as we have said that the favorable second class rates were granted to periodicals meeting the requirements of the Fourth condition so that the public good might be served through a dissemination of the class of periodicals described
But that is a far cry from assuming that Congress had any idea that each applicant for the second class rate must convince the Postmaster General that his publication positively contributes to the public good or public welfare
Under our system of government there is an accommodation for the widest varieties of tastes and ideas
What is good literature what has educational value what is refined public information what is good art varies with individuals as it does from one generation to another
There doubtless would be a contrariety of views concerning Cervantes  Don Quixote Shakespeare s Venus  Adonis or Zola s Nana
But a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system
The basic Values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature
From the multitude of competing offerings the public will pick and choose
What seems to one to be trash may have for others fleeting or even enduring values 1  363 Matters concerning the intellect and ethics do undergo fluctuations from era to era
The world of mind is a changing one
A It is not static
The streams of literature and of taste and judgment in that sphere are not stagnant
They have a quality of freshness and vigour
They keep on changing from time to time from place to place and from community to community
It is one thing to say that in view of considerations relevant to public finance which require every citizen to contribute a reasonable amount to public exchequer customs duty is leviable even on newsprint used by newspaper industry and an entirely different thing to say that the levy is imposed because the newspapers generally contain piffles 
While the former may be valid if the circulation of newspapers is not affected prejudicially the latter is impermissible under the Constitution as the levy is being made on a consideration which is wholly outside the constitutional limitations
The Government cannot arrogate to itself the power to prejudge the nature of contents of newspapers even before they are printed
Imposition of a restriction of the above kind virtually amounts to conferring on the Government the power to precensor a newspaper
The above reason given by the Minister to levy the custom duty is wholly irrelevant
To sum up the counter affidavit filed on behalf of the Government in these cases does not show whether the Government ever considered the relevant matters
It says that the extent of burden on the newspaper industry imposed by the impugned levy is irrelevant
It says that the position that foreign exchange reserve is comfortable is not relevant
It does not say that the increasing cost of imported newsprint was taken into consideration
The Finance Minister says that the levy was imposed because he found piffles  in some newspapers
There is no reference to the effect of the implementation of the Palekar Award on the newspaper industry
It does not also state what effect it will have on the members of the public who read newspapers and how far it will reduce the circulation of newspapers
It is argued on behalf of the Government that the effect of the impugned levy being minimal there is no need to consider the contentions urged by the petitioners
As observed by Lord Morris of Borth Y Gest in Honourable Dr Paul Borg Olivier  Anr vs Honourable Dr Anton Buttigiegl a case from Malta that where 1 11967 AC 115 PC 364 fundamental rights and freedom of the individual are being considered a court should be cautious before accepting the view that some particular disregard of them is of minimal account
The learned Lord observed in the above case that there was always the likelihood of the violation being vastly widened and extended with impunity
He also referred to the words of Portia Twill be recorded for a precedent and many an error by the same example will rush into the state  and the following passage from the American case i e Thomas vs Collins I The restraint is not small when it is considered what was restrained
The right is a national right federally guaranteed
There is some modicum of freedom of thought speech and assembly which all citizens of the republic may exercise throughout its length and breadth which no state nor all together not the nation itself can prohibit restrain or impede
If the restraint were smaller than it is it is from petty tyrannies that large ones take root and grow
This fact can be more plain than when they are imposed on the most basic right of all
Seedlings planted in that soil grow great and growing break down the foundations of liberty
 In the above decision the Privy Council cited with approval the view expressed by this Court in Romesh Thappar s case supra and in Martin vs City of Struthers2 The Privy Council observed thus A measure of interference with the free handling of the newspaper and its free circulation was involved in the prohibition which the circular imposed
It was said in an Indian case Romesh Thappey vs State of Madras There can be no doubt that freedom of speech and expression includes freedom of prepagation of ideas and that freedom is secured by freedom of 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 2  31943  365 Similar thoughts were expressed by Black J in his judgment in Martain vs City of Struthers when he said Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that putting aside reasonable police and health regulations of time and manner of distribution it must be fully preserved
We respectfully endorse the high principle expounded by the Privy Council in the above case
Moreover in the absence of a proper examination of all relevant matters it is not possible to hold that the effect of the levy is minimal
In fact the impact of the impugned levy in these cases is not minimal at all
For example The Tribune Trust has to pay Rs 187 lacs and The Statesman Ltd has to pay Rs 359 lacs by way of customs duty on newsprint imported during 1983 84
Other big newspapers have also to pay large sums by way of customs duty annually
The question in the present cases is whether the tax has been shown to be so burdensome as to warrant its being struck down  The petitioners have succeeded in showing a fall in circulation but whether it is a direct consequence of the customs levy and the increase in price has not been duly established
It may be due to various circumstances
The fall in circulation may be due to the general rise in cost of living and the  reluctance of people to buy as many newspapers as they used to buy before
It may be due to bad management
It may be due to change of editorial policy
It may be due to the absence of certain feature writers
It may be due to other circumstances which it is not possible to enumerate
Except the synchronizing of time there is nothing to indicate that the slight fall in circulation is directly due to the levy of customs duty
One curious feature of the case is that the petitioners have made no efforts to produce their balance sheets or profit and loss statements to give us a true idea of how burdensome the customs levy really is
On the other hand the Government also has made no efforts to show the effect of the impact of the levy on the newspaper industry as a whole
All these years the very exemption which they granted was an indication that the levy was likely to have a serious impact on the newspaper industry
Even now the exemption given to the small and medium newspapers shows that there is bound to be an impact
No effort has been made on the part of the Government to show 366 the precise nature of the impact
On the other hand the case of the Government appears to be that such considerations are entirely irrelevant though the outstanding fact remains that for several years the Government itself thought that the newsprint deserved total exemption
On the material now available to us while it is not possible to come to the conclusion that the effect of the levy is indeed so burdensome as to affect freedom of the press we are also not able to come to the conclusion that it will not be burdensome
This a matter which touches the freedom of the press which is as we said the very soul of democracy
This is certainly not a question which should be decided on the mere question of burden of proof
There are factors indicating that the present levy is heavy and is perhaps heavy enough to affect circulation
On such a vital issue we cannot merely say that the petitioners have not placed sufficient material to establish the drop in circulation is directly linked to increase of the levy when on the side of the Government the entire exercise is thought to be irrelevant
Hence there appears to be a good ground to direct the Central Government to reconsider the matter afresh in the light of what has been said here
Is the classification of newspapers made for the purpose of exemption violative of Article 14 7 We do not however see much substance in the contention of some of the petitioners that the classification of the newspapers into small medium and big newspapers for purposes of levying customs duty is violative of Article 14 of the Constitution
The object of exempting small newspapers from the payment of customs duty and levying 5 ad valorem now Rs 275 per MT on medium newspapers while levying full customs duty on big newspapers is to assist the small and medium newspapers in bringing down their cost of production
Such papers do not command large advertisement revenue
Their area of circulation is limited and majority of them are in Indian languages catering to rural sector
We do not find anything sinister in the object nor can it be said that the classification has no nexus with the object to be achieved
As observed by Mathew J in the Bennett Coleman s case supra it is the duty of the State to encourage education of the masses through the medium of the press under Article 41 of the Constitution
We therefore reject this contention
367 VIII Relief Now arises the question relating to the nature of relief that may be granted in these petitions
These cases present a peculiar difficulty which arises out of the pattern of legislation under consideration
If the impugned notifications ale merely quashed they being notifications granting exemptions the exemptions granted under them will cease
Will such quashing revive the notification dated July 151977 which was in force prior to March 11981 under which total exemption had been granted  We do not think so
The impugned notification dated March 1 1981 was issued in supersession of the notification dated July 151977 and thereby it achieved two objects the notification dated July 151977 came to be repealed and 10 ad valorem
customs duty was imposed on newsprint
Since the notification dated July 151977 had been repealed by the Government of India itself it cannot he revived on the quashing of the notification of March 11981
The effect of such quashing of a subsequent notification on an earlier notification in whose place the subsequent notification was issued has been considered by this Court in BN Tiwari vs Union of India and Ors1 In that case the facts were these in 1952 a carry forward  rule governing the Central Service was introduced whereby the unfilled reserved vacancies of a particular year would be carried forward for one year only
In 1955 the above rule was substituted by another providing that the unfilled reserved vacancies of a particular year would be carried forward for two years
In T Devadasan vs The Union of India  Anr2 the 1955 rule was declared unconstitutional
One of the questions which arose for consideration in this case Tiwari s case supra was whether the 1952 rule had revived after the 1955 rule was struck down
This Court held that it could not revive
The following are the observations of this Court on the above question We shall first consider the question whether the carry forward rule of 1952 still exists
It is true that in Devadasan s case the final order of this Court was in these terms In the result the petition succeeds partially and 1  2  368 the carry forward rule as modified in 1955 is declared invalid
 That however does not mean that this Court held that the 1952 rule must be deemed to exist because this Court said that the carry forward rule as modified in 1955 was declared invalid
The carry forward rule of 1952 was substituted the carry forward by rule of 1955
On this substitution the carry forward rule of 1952 clearly ceased to exist because its place was taken by the carry forward rule of 1955
Thus by promulgating the new carry forward rule in 1955 the Government of India itself canceled the carry forward rule of 1952
When therefore this Court struck down the carry forward rule as modified in 1955 that did not mean that the carry forward rule of 1952 which had already ceased to exist because the Government of India itself canceled it and had substituted a modified rule in 1955 in its place could revive
We are therefore of opinion that after the judgment of this Court in Devadasan s case there is no carry forward rule at all for the carry forward rule of 1955 was struck down by this Court while the carry forward rule of 1952 had ceased to exist when the Government of India substituted the carry forward rule Of 1955 in its place In Firm ATB Mehtab Majid  Co vs State of Madras  Anr1 also this Court has taken the view that once an old rule has been substituted by a new rule it ceases to exist and it does not get revived when the new rule is held invalid
The rule in Mohd Shaukat Hussain Khan vs State of Andhra Pradesh2 is inapplicable to these cases
In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State Legislature
In such a case the earlier law could be deemed to have never been modified or repealed and would therefore continue to be in force
It was strictly not a case of revival of an earlier law which had been repealed or modified on 1 19631 Supp 2 SCR 435 at 446
2  369 the striking down of a later law which purported to modify or repeal A the earlier one
It was a case where the earlier law had not been either modified or repealed effectively
The decision of this Court in Shri Mulchand Odhavji vs Rojkot Borough Municipality is also distinguishable
In that case the State Government had been empowered by section 3 of the Saurashtra Terminal Tax and Octroi Ordinance 47 of 1949 to impose octroi duty in towns and cities specified in Schedule I thereof and section 4 authorised the Government to make rules for the imposition and collection of octroi duty
These rules were to be in force until the City Municipalities made their own rules
The rules framed by the Municipality concerned were held to be inoperative
Then the question arose whether the rules of the Government continued to be in force
The Court held a The Government rules however were to cease to operate as the notification provided from the date the said Municipality put into force their independent by laws
 It is clear beyond doubt that the Government rules would cease to apply from the time the respondent Municipality brought into force its own bye laws and rules under which it could validly impose levy and recover the octroi duty
The said notification did not intend any hiatus when neither the Government rules nor the municipal rules would be in the field
Therefore it is clear that if the bye laws made by the respondent Municipality could not be legally in force some reason or the other for instance for not having been validly made the Government rules would continue to operate as it cannot be said that the Municipality had put into force their independent bye laws
The Trial Court as also the District Court were therefore perfectly right in holding that the respondent Municipality could levy and collect octroi duty from the appellant firm under the Government rules
There was no question of the Government rules being revived as in the absence of valid rules of the respondent Municipality they continued to operate
The submission of counsel in this behalf therefore cannot be sustained
 In the cases before us we do not have rules made by two 1  Al
R 370 different authorities as in Mulchand s case supra and no intention on the part of the Central Government to keep alive the exemption in the event of the subsequent notification being struck down is also established
The decision of this court in Koteswar Vittal Kamath vs K Rangappa Baliga  Co1 does not also support the petitioners
In that case again the question was whether a subsequent legislation which was passed by a legislature without competence would have the effect of reviving an earlier rule which it professed to supersede
This case again belongs to the category of Mohd Shaukat Hussain Khan s case supra
It may also be noticed that in Koteswar Vittal Kamath s case supra the ruling in the case of Firm ATB Mehtab Majid  Co supra has been distinguished
The case of State of Maharashtra etc
vs The Central Provinces Manganese Ore Co Ltd2 is again distinguishable
In this case the whole legislative process termed substitution was abortive because it did not take effect for want of the assent to the Governor General all the Court distinguished that case from Tiwari s case supra
We may also state that the legal effect on an earlier law when the later law enacted in its place is declared invalid does not depend merely upon the use of words like substitution  or supersession 
It depends upon the totality of circumstances and the context in which they are used
In the cases before us the competence of the Central Government to repeal or annul or supersede the notification dated July 15 1977 is not questioned Hence its revival on the impugned notifications being held to be void would not arise
The present cases are governed by the rule laid down in Tiwari s case supra Hence if the notification dated July 15 1977 cannot revive on the quashing of the impugned notifications the result would be disastrous to the petitioners as they would have to pay customs duty of 40 ad valorem from March 1 1981 to February 28 1982 and 40 ad valorem plus Rs 1000 per MT from March 1 1982 onwards
In addition to it they would also be liable to pay auxiliary duty of 30 ad valorem during the fiscal year 1983 84 and auxiliary duty of 50 ad valorem during the fiscal year 1982 83
They would straigtaway be liable to pay the whole of customs duty and any other duty levied during the current fiscal year also
Such a result cannot be allowed to ensue
1  2 1977 I SCR 1002
371 It is no doubt true that so me of the petitioners have also questioned the validity of the levy prescribed by the itself
But we are of the view the it is unnecessary to quash it because of the pattern of the legislative provisions levying customs duty which authorise the Government in appropriate cases either to reduce the duty or to grant total exemption under section 25 of the having regard to the prevailing circumstances and to very such concessions from time to time
The Governmental practice in the matter of customs duties has made the law imposing customs virtually a hovering legislation
Parliament expects the Government to review the situation in each case periodically and to decide what duty should be levied within the limit prescribed by the 
Hence the validity of the provision in the need not be examined now
Since it is established that the Government has failed to discharge its statutory obligations in accordance with law while issuing the impugned notifications issued under section 25 of the Custom Act 1962 on and after March 1 1981 the Government should be directed to re examine the whole issue relating to the extant of exemption that should be granted in respect of imports of newsprint after taking into account all relevant considerations for the period subsequent to March 11981 We adopt this course since we do not also wish that the Government should be deprived of the legitimate duty which the petitioners would have to pay on the imported newsprint during the relevant period
In the result in view of the peculiar features of these cases and having regard to Article 32 of the Constitution which imposes an obligation on this Court to enforce the fundamental rights and Article 142 of the Constitution which enables this Court in the exercise of its jurisdiction to make such order as is necessary for doing complete justice in any cause or matter pending before it we make the following order is these cases The Government of India shall reconsider within six months the entire question of levy of import duty or auxiliary duty payable by the petitioners and others on newsprint used for printing newspapers periodicals etc
with effect from March 1 1981
The petitioners and others who are engaged in newspaper business shall make available to the Government all information necessary to decide the question
If on such reconsideration the Government decides that 372 there should be any modification in the levy of customs duty or A auxiliary duty with effect from March 1 1981 it shall take necessary steps to implement its decision
Until such redetermination of the liability of the petitioners and others is made the Government shall recover only Rs 550 per MT on imported newsprint towards customs duty and auuiliary duty and shall not insist upon payment of duty in accordance with the impunged notifications
The concessions extended to medium and small newspapers
may however remain in force
If after such redetermination it is found that any of the petitioners is liable to pay any deficit amount by way of duty such deficit amount shall be paid by such petitioner within four months from the date on which a notice of demand is served on such petitioner by the concerned authority
Any bank guarantee or security given by the petitioners shall be available for recovery of such deficit amounts
If after such redetermination it is found that any of the petitioners is entitled to any refund such refund shall be made by the Government within four months from the date of such redetermination
A writ shall issue to the respondents accordingly in these cases
Parties shall however bear their own costs
The petitions are accordingly allowed


Summary:
Under the Indian Tariff Act 1934 there was a levy of customs duty on imported paper
Exemption however had been granted for import of white grey or unglazed newsprint from the levy of any kind of customs duty in excess of 15 ad valorem but subsequently a specific import duty of Rs 50 per MT was levied on newsprint imports upto 1966
The Inquiry Committee on Small Newspapers examined the question of customs duty on newsprint and submitted its report in 1965 recommending total exemption of newsprint from customs duty
Pursuant to the said recommendation the Government abolished customs duty on newsprint altogether in the year 1966
In 1971 a regulatory duty of 2 12 was levied on newsprint imports
This 2 12 regulatory duty was abolished and was converted into 5 auxiliary duty by the Finance Act of 1973
On the coming into force the Indian Tariff Act 1934 was repealed
Under section 2 read with Heading No 480121 of the First Schedule to the 197S Act a levy of basic customs duty of 40 ad valorem was imposed on newsprint
However the 5 auxiliary duty levied from April 1 1973 continued to be in operation which was also totally abolished in July 1977
The total exemption from customs duty on newsprint continued till March 1 1981 when notification dated July IS 1977 granting total exemption from customs duty superseded by the issue of a fresh notification under which publishers of newspapers had to pay 10 ad valorem customs duty on imported newsprint
By another notification issued at about the same time the auxiliary duty imposed by the Finance Act of 1981 above 5 ad valorem was exempted in the case of newsprint
The result was that a total duty of 15 ad valorem came to be imposed on newsprint for the year 1981 82 which led to the increase in the price of newspaper resulting in fall in circulation of news papers
In the first set of writ petitions this 15 levy was challenged
During the pendency of these writ petitions while was amended levying 40 ad valorem plus Rs 1000 pet MT as customs duty on newsprint the auxiliary duty payable on all goods subject to customs duty was increased to 50 ad valorem
But by notification dated February 82
289 1982 issued under section 252 of the the notification A dated March 1 1981 was superseded and Rs 550 per tonne was imposed as customs duty on newsprint and auxiliary duty was fixed at Rs 275 per tonne
In all Rs 825 per tonne of newspaper had to be paid as duty
Under the newsprint policy of the Government there were three sources of supply of newsprint i high seas sales
ii sales from the buffer stock built up by the State Trading Corporation which includes imported newsprint and iii newsprint manufactured in India
Imported newsprint is an important component of the total quantity of newsprint utilised by any newspaper establishment
The validity of the imposition of import duty on newsprint imported from abroad under section 12 of the Act 52 of 1962 read with section 2 and Heading No 480121 Sub heading No 2 in the First Schedule to the Act 51 of 1975 and the levy of auxiliary duty under the Finance Act 1981 on newsprint as modified by notifications issued under section 25 of the with effect from March 1 1981 was challenged in the writ petitions
In the writ petitions it was contended I that the imposition of the import duty has the direct effect of crippling the freedom of speech and expression guaranteed by the Constitution as it led to the increase in the price of newspapers and the inevitable consequence of reduction of their circulation 2 that with the growth of population and literacy in the country every newspaper is expected to register an automatic growth of at least 5 in its circulation every year but this growth is directly impeded by the increase in the price of newspapers 3 that the method adopted by the and the in determining the rate of import duty has exposed E the newspaper publishers to Executive interference 4 that there was no need to impose customs duty on newsprint which had enjoyed total exemption from its payment till March 1 1981 as the foreign exchange position was quite comfortable
Under the scheme in force the State Trading Corporation of India sells newsprint to small newspapers with a circulation of less than 15000 at a price which does not include any 
import duty
to medium newspapers with a circulation between 15000 and 50000 at a price which includes 5 ad valorem duty now Rs 275 per MT and to big newspapers having a Circulation of over 50000 at a price which includes the levy of 15 ad valorem duty now Rs 825 per MT
This classification of newspapers  into big medium and small newspapers is irrational as the purchases on high seas are sometimes effected by a publisher owning many newspapers which may belong to different classes 5 that the enormous increase in the price of newsprint subsequent to March 1 1981 and the inflationary economic conditions which led to higher cost of production have made it impossible for the industry to bear the duty any longer
Since the capacity to bear the duty is an essential element in determining the reasonableness of the levy the continuance of the levy is violative of Article 191a and Article 191g of the Constitution
The imposition of the levy on large newspapers by the Executive is done with a view to stifling circulation of newspapers which are highly critical of the performance of the adminis 290 tration
The classification of newspapers into small medium and big for purposes of levy of import duty is violative of Article 14 of the Constitution and 6 that the power of the Government to levy taxes of any kind on the newspaper establishment rings the death knell of the freedom of press and would be totally against the spirit of the Constitution
The Union of India contested the writ petitions alleging I that the Government had levied the duty in the public interest to augment the revenue of the Government
When exemption is given from the customs duty the Executive has to satisfy itself that there is some other corresponding public interest justifying such exemption and that in the absence of any such public interest there is no power to exempt but to carry out the mandate of Parliament which has fixed the rate of duty by the  2 that the classification of newspapers for purposes of granting exemption is done the public interest having regard to relevant considerations and that the levy was not Malay fide Since every section of the society has to bear its due share of the economic burden of the state levy of customs duty on newsprint cannot be considered to be violative of Article 191 a
The plea that the burden of taxation is excessive is an irrelevant factor to the levy of import duty on newsprint 3 that the fact that the foreign exchange position was comfortable was no bar to the imposition of import duty and 4 since the duty imposed is an indirect tax which would be borne by the purchaser of newspaper the petitioner could not feel aggrieved by it
Allowing the Writ Petitions  HELD 1
The expression freedom of press  has not been used in Article 19 of the Constitution but as declared by this Court it is included in Article 19 1 a which guarantees freedom of speech and expression
Freedom of press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers
310C 35I 2
There could not be any kind of restriction on the freedom of speech and expression other than those mentioned in Article 19 2 and it is clear that there could not be any interference with that freedom in the name of public interest Even when clause 2 of Article 19 was subsequently substituted under the Constitution First Amendment Act 1951 by a new clause which permitted the imposition of reasonable restrictions on the freedom of speech and expression in the interests of sovereignty and integrity of India these urity of the State friendly relations with foreign States public order decency or morality in relation to contempt of court defamation or incitement to an offence
Parliament did not choose to include a clause enabling the imposition of reasonable restrictions in the public interest
3l2B C 3
Freedom of press is the heart of social and political
intercourse The press has now assumed the role of the public educator making formal and non formal education possible in a large scale particularly in the developing world where television and other kinds of modern communication are not 291 still available for all sections of society
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
Newspapers being purveyors of news and views having a bearing on public administration very often carry material which would not be palatable to governments and other authorities
With a view to checking malpractices which interfere with free flow of information democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it
316BD H It is the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate
317A Brij Bhushan  Anr
v The State of Delhi 1950 S CR 605 Bennett Coleman  Co  ors vs Union of India  ors
  Romesh Thappar vs The State of Madras   Express Newspapers Private Ltd  Anr
vs The Union of lndia  ors
and Sakal Papers P Ltd  Ors vs The Union of India 19621 3 SCR 842 followed
1 Annals of Congress 1789 96 p 141 DR Mankekar The Press under Pressure 1973 p 25 Article 19 of the Universal Declaration of Human Rights 1948 Article 19 of the International Covenant on Civil and Political Rights 1965 Article 10 of the European Convention on Human Rights First Amendment to the Constitution of the United States of America Article by Frank C Newman and Karel Vasak on Civil and political Rights  in the International Dimensions of Human Rights Edited by Karel Vasak Vo
155 156 Many Voices one World a publication of UNESCO containing the Final Report of the International Commission for the Study of Communication Problems Part V dealing with Communication Tomorrow  p 265 Article entitled Toward a General Theory of the First Amendment  by Thomas 1
Emerson The Yale Law Journal Vol
72 877 at p 906 Second Press Commission Report Voll
3435
referred to
i Excluding small newspaper establishments having circulation of less than about 10000 copies a day all other bigger newspaper establishments have the characteristics of a large industry The Government has to provide many services to them resulting in a big drain on the financial resources of the State as many of these services are heavily subsidized
Naturally such big newspaper organisations have to contribute their due share to the public exchequer and have to bear the common fiscal burden like all others
1324C E ii While examining the constitutionality of a law said to be contravening Article 19 1 a of the Constitution the decisions of the Supreme Court of the United States of America cannot be solely relied upon for guidance but could be taken into consideration for understanding the basic principles of freedom of speech and expressiyn and the need for that freedom in a democratic country
1324F G iii The pattern of Article 19 1 a and of Article 19 1 g of the Indian Constitution is different from the pattern of the First Amendment to the American Constitution which is almost absolute in its terms
The rights guaranteed under Article 19 1 a and Article 19 1 g of the Constitution 292 are to be read alongwith clauses 2 and 6 of Article 19 which carve out areas A in respect of which valid legislation can be made
324H 325A 6
Newspaper industry has not been granted exemption from taxation in express terms
Entry 92 of List I of the Seventh Schedule in the Constitution empowers Parliament to make laws levying taxes on sale or purchase of newspapers and on advertisements published therein
The power to levy customs duties on goods imported into the country is also entrusted to Parliament by Entry 83 in List I of the Seventh Schedule to the Constitution
325B 326G 7
The First Amendment to the Constitution of the United States of America is almost in absolute terms and therefore no law abridging the freedom of the press can be made by the Congress
Yet the American Courts have recognised the power of the State to levy taxes on newspapers establishments subject to judicial review by courts by the application of the due process of law principle
328E F 8
The police power taxation and eminent domain are all forms of social control which are essential for peace and good government
In India the power to levy tax on persons carrying on the business or publishing newspapers has got to be recognised as it is inherent in the very concept of government
But the exercise of such power should
however be subject to scrutiny by courts
Entry 92 of List I of the Seventh Schedule to the Constitution expressly suggests the existence of such power
328G 329C 9
It is not necessary for the press to be subservient to the Government
As long as this Court sits  newspapermen need not have the fear of their freedom being curtailed by unconstitutional means
It is not acceptable that merely because the Government has the power to levy taxes the freedom of press would be totally lost
The Court is always there to hold the balance even and to strike down any unconstitutional invasion of that freedom
338G 339F 10
Newspaper industry enjoys two of the fundamental rights namely the freedom of speech and expression guaranteed under Article 19 1 a and the freedom to engage in any profession occupation trade
industry or business guaranteed under Article 19 1 g While there can be no tax on the right to exercise freedom of expression tax is leviable on profession occupation trade business and industry
Hence tax is leviable on newspaper industry
But when such tax transgresses into the field of freedom of expression and stifles that freedom it becomes unconstitutional
As long as it is within reasonable limits and does not impede freedom of expression it will not be contravening the limitations of Article 19 2
The delicate task of determining when it crosses from the area of profession occupation trade business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the courts
339G H 340A B 11
While levying a tax on newspaper industry it must be kept in mind that it should not be an over burden on newspapers which constitute the Fourth Estate of the country
Nor should it single out newspaper industry for harsh treatment
Imposition of a tax like the customs duty on newsprint is an imposition on knowledge and would virtually amount to a burden imposed on 293 a man for being literate and for being conscious of his duty as a citizen to inform himself about the would around him The public interest in freedom A of discussion of which the freedom of the press is one aspect stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves 
341H 342A B 12
Freedom of expression has four broad social purposes to serve i it helps an individual to attain self fulfilment ii it assists in the discovery of truth iii it strengthens the capacity of an individual in participating in decision making and iv it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change
All members of society should be able to form their own beliefs and communicate them freely to others
In sum the fundamental principle is the people s right to know
Freedom of speech and expression should therefore receive a generous support from all those who believe in the participation of people in the administration
It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters
342C E 13
In view of the intimate connection of newsprint with the freedom of the press the tests for determining the vires of a statute taxing newsprint have therefore to be different from the tests usually adopted for testing the vires of other taxing statutes
In the case of ordinary taxing statutes the laws may be questioned only if they are either openly confiscatory or a colourable device to confiscate
On the other hand
in the case of a tax on newsprint it may be sufficient to show a distinct and noticeable burdensomeness clearly and directly attributable to the tax
342G H Constituent Assembly Debates
IX pp
1l75 1180 dt
September 91949 Corpus Juris Secundum Vol 16 p 1132 American Jurisprudence 2d Vol 16 p 662 Article on the First Amendment by Thomas 1
Emerson The Yale Law journal Vol
72 at p 941 Second Press Commission Report Vol 1 p 35 Essay No 84 by Alexander Hamilton in The Federalist Alice Lee Grosjean supervisor of Public Accounts for the State of Louisiana vs American Press Company  80 L ed
660 Robert Murdock Jr vs Commonwealth of Pennsylvania City of Jeannette
 87 Law
1292 and Attorney General  Anr
vs Antigua Times Ltd  referred to Bennett Coleman  Co  ors
vs Union of India  ors 19731 2 SCR 757 and Sakal Papers P Ltd  Ors
vs The Union of India   distinguished
G Attorney General vs rimes Newspapers 1973 3 All
ER 54 followed
14 In the instant cases assuming that the power to grant exemption under section 25 of the is a legislative power and a notification issued by the Government there under amounts to a piece of 294 subordinate legislation even then the notification is liable to be questioned on the ground that it is an unreasonable one
34SC D 15
A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature Subordinate legislation may be questioned on any of grounds on which plenary legislation is questioned
In addition it may also be questioned on the ground that it does not conform to the statute under which it is made
It may further be questioned on the ground that it is contrary to some other statute
That is because subordinate legislation must yield to plenary legislation
It may also be questioned on the Ground that it is unreasonable unreasonable not in the sense of not being reasonable but in the sense that it is manifestly arbitrary
345H 346A B 16
In India arbitrariness is not a separate ground since it will come within the embargo or Article 14 of the Constitution
In India any enquiry into the vires of delegated legislation must be confined to the ground on which plenary legislation may be questioned to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution
Subordinate legislation cannot be questioned on the ground of violation of principles of natural justice on which administrative action may be questioned
347E G 17
A distinction must be made between delegation of a legislative function in the case of which the question of reasonableness cannot be enquired into and the investment by statute to exercise particular discretionary power
In the latter case the question may be considered on all grounds on which administrative action may be questioned such as non application of mind taking irrelevant matters into consideration failure to take relevant matters into consideration etc
On the facts and circumstances of a case a subordinate legislation may be struck down as arbitrary or contrary to statute if it fails to take into account very vital facts which either expressly or by necessary implication are required to be taken into consideration by the statute or say the Constitution
This can only be done on the ground that it does not conform to the statutory or constitutional requirements or that it offends Article 14 or Article 19 1 a of the Constitution
It cannot no doubt be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant
 348A D 8
In cases where the power vested in the Government is a power which has got lo be exercised in the public interest as it happens to be here the Court may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution
The fact that a notification issued under section 25 1 of the is required to be laid before Parliament under section 159 thereof does not make any substantial difference as regards the jurisdiction of the court to pronounce on its validity
348E F 19
Section 25 of the under which the notifications are issued confers a power on the Central Government coupled with a duty to examine the whole issue in the light of public interest
It provides that if the Central Government is satisfied that it is necessary in the public interest so to 295 do it may exempt generally either absolutely or subject to such conditions A goods of any description from the whole or any part of the customs duty leviable thereon
The Central Government may if it is satisfied that in the public interest so to do exempt from the payment of duty by a special order in each case under circumstances of an exceptional nature to be stated in such order any goods on which duty is leviable The power exercisable under section 25 of the is no doubt discretionary but it is not unrestricted
350C E 20
Any notification issued under a statute also being a law  as defined under Article 133a of the Constitution is liable to be struck down if it is contrary of any of the fundamental rights guaranteed under Part III of the Constitution
350H 351A Article entitled Judicial Control of Delegated Legislation The Test of Reasonableness  by Prof Alan Wharam at pp 622 23 HWR Wade Administrative Law 5th Edn pp
747 748 Municipal Corporation of Delhi vs Birla Cotton Spinning and Weaving Mills Delhi  Anr   Kruse vs Johnson  Mixnam Properties Ltd vs Chertsey UDC 1964 I QB 214 The Tulsipur Sugar Co Ltd vs The Notified Area Committee Tulsipur 1980 2SCR1111Ramesh Chandra Kachardas Porwal  Ors
vs State of Maharashtra  ors
etc   Bates vs Lord Hailsham of St Marylebone  ors
and Associated Provincial Picture Houses Ltd vs Wednesbury Corporation   referred to
Narinder Chand Hem Raj  ors
vs Lt Governor Administrator Union Territory
Himachal Pradesh  Ors1972 1 SCR 940 distinguished E State of Madras vs VG Rao  and Breen vs Amalgamated Engineering Union  relied upon
If any duty is levied on newsprint by Government it necessarily has to be passed on to the purchasers of newspapers unless the industry is able to absorb it
In order to pass on the duty to the consumer the price of newspapers has to be increased
Such increase naturally affects the circulation of newspapers adversely
352G 22
The pattern of the law imposing customs duties and the manner in which it is operated to a certain exposes the citizens who are liable to pay customs duties to the vagaries of executive discretion
While Parliament has imposed duties by enacting the and the Customs Tariff Act 1962 the Executive Government is given wide power by section 25 of the to grant exemption from the levy of Customs Duty it is ordinarily assumed that while such power to grant exemptions is given to the Government it will consider all relevant aspects governing the question whether exemption should be granted or not
In the instant case in 1975 when the was enacted 40 ad valorem was levied on newsprint even though it had been exempted from payment of such duty
If the exemption had not been continued newspaper publishers had to pay 40 ad valorem customs duty on the coming into force of the  296 1975 Then again in 1982 by the Finance Act 1982 an extra levy of Rs 1000 per tonne was imposed in addition to the original 40 ad valorem duty even though under the exemption notification the basic duty had been fixed at 10 of the value of the imported newsprint
Neither any material justifying the said additional levy was produced by the Government nor was it made clear why this futile exercise of levying an additional duty of Rs 1000 per tonne was done when under the notification issued under
section 25 of the on March 1 1981 which was in force then customs duty on newsprint above 10 ad valorem had been exempted
While levying tax on an activity which is protected also Article l91a a greater degree of care should he exhibited
While it is indisputable that the newspaper industry should also hear its due share of the total burden of taxation alongwith the rest of the community when any tax is specially imposed on newspaper industry it should he capable of being justified as a reasonable levy in court when its validity is challenged
In the absence of sufficient material
the levy of 40 plus Rs 1000 per tonne would become vulnerable to attack
355E H356A C 23
The reasons given by the Government to justify the total customs duty of 15 levied from March 1 1981 or total Rs 825 per tonne as it is currently being levied appear to be inadequate
In the Finance Minister s speech delivered on the floor of the Lok Sabha in 1981 the first reason given for the levy of 15 duty was that it was intended  to promote a measure of restraint in the consumption of imported newsprint and thus help in conserving foreign exchange
 This ground appears to be not tenable for two reasons
Nobody in Government had ever taken into consideration the effect of the import of newsprint on the foreign exchange reserve before issuing the notification levying 15 duty
Secondly no newspaper owner can import newsprint directly
News print import is canalised through the State Trading Corporation
If excessive import of newsprint adversely affects foreign exchange reserve the State Trading Corporation may reduce the import of newsprint and allocate lesser quantity of imported newsprint to newspaper establishments
There is
however no need to impose import duty with a view to curbing excessive import of news print
It is clear that the Government had not considered vital aspects before Withdrawing the total exemption which was being enjoyed by newspaper industry till March 1 1981 and industry 15 duty on newsprint
356D H 357A B 24
Attention was particularly drawn to the statement of the Finance Minister that one of the considerations which prevailed upon the Government to levy the customs duty was that the newspapers contained piffles 
A piffle  means foolish nonsense
It appears that one of the reasons for levying the duty was that certain writings in newspapers appeared to the Minister as piffles 
Such action is not permissible under the Constitution
361H 362A 25
Matters concerning the intellect and ethics do undergo fluctuations from era to era
The world of mind is a changing one
It is not static
The streams of literature and of taste and judgment in that sphere are not stagnant
They have a quality of freshness and vigour
They keep on changing from time to time from place to place and from community to community
868A 297 26
It is one thing to say that in view of considerations relevant to A public finance which require every citizen to contribute a reasonable amount to public exchequer customs duty is leviable even on newsprint used by newspaper industry and an entirely different thing to say that the levy is imposed because the newspapers generally contain  piffles  
While the former may be valid if the circulation of newspapers is not affected prejudicially the latter is impermissible under the Constitution as the levy is being made on a consideration which is wholly outside the constitutional limitations
The Government cannot arrogate to itself the power to prejudge the nature of contents of newspapers even before they are printed
Imposition of a restriction of the above kind virtually amounts to conferring on the Government the power to precensor a newspaper
The above reason given by the Minister to levy the customs duty is wholly irrelevant
363B D 27 The argument on behalf of the Government that the effect of the impugned levy i minimal cannot be accepted
365C 28
There are factors indicating that the present levy is heavy and is perhaps heavy enough to affect circulation
There appears to be a good ground to direct the Central Government to reconsider the matter afresh
366C D Final Report of the International Commission for the Study of Communication Problems pp
100 add 141 Encyclopaedia Britannica 1962 Vol
16 p 339 Second Press Commission ReportVol
11pp
182 183 Bennett Coleman 757 Sakal PapersP Ltd  Ors
vs The Union of India   William B Cammarane vs United States of America    Jeffery Sole Bigelow Commonwealth of Virginia 421 us 809 L ed 2d60O at 610 and Robert E Hannegan vs Esquire Inc 90 L ed 586 referred to
Hamdard Dawakhana WakS Lal Kuan Delhi  Anr
vs Union of India  Ors
   Lews J Yelentine vs F J Chrestensen 86 Law ed
1292 and in re Sea   distinguished
Romesh Thapper vs The State of Madras 1950 SCR 564 Honourable Dr Paul Borg olivier  Anr
vs Honourable Dr Anton Buttigieg  Thomas vs Collins  Martin vs City of Struthers 11943   followed
The classification of the newspapers into small medium and big newspapers for purposes of levying customs duty is not violative of Article 14 of the Constitution
The object of exempting small newspapers from the payment of customs duty and levying 5 ad valorem now Rs 275 per MT on medium newspapers while levying full customs duly on big newspapers is to assist the small and medium newspapers in bringing down their cost of production
Such papers do not command large advertisement revenue
Their area of circulation is limited and majority of them are in Indian languages catering to rural sector
There is nothing sinister in the 298 object nor can it be said that the classification has no nexus with the object to be achieved
366F G Bennett Coleman  Co  Ors vs Union of India  Ors  referred to
Quashing of the impugned notification dated March 1 1981 which had repealed the notification dated July 15 1977 under which total exemption had been granted would not revive the notification dated July IS 1977
Once an old rule has been substituted by a new rule it cases to exist and it does not get revived when the new rule is held invalid
Since the competence of the Central Government to repealer annul or supersede the notification dated July 15 1977 is not questioned its revival on the impugned notifications being held to be void would not arise and therefore on the quashing of the impugned notification the petitioners would have to pay customs duty of 40 ad valorem from March 1 1981 to February 28 1982 and 40 ad valorem plus Rs 1000 per MT from March 1 1982 onwards In addition to it they would also be liable to pay auxiliary duty of 30 ad valorem during the fiscal year 1982 83 and auxiliary duty of 50 ad valorem during the fiscal year 1983 8 i They would straightaway be liable lo pay the whole of customs duty and any other duty levied during the current fiscal year also
Such a result cannot be allowed to ensue
The challenge to the validity of the levy prescribed by the customs Tariffs Act 1975 itself cannot be allowed to succeed
370F H 31
The Government has failed to discharge its statutory obligations While issuing the impugned notifications
the Government is directed to reexamine the whole issue after taking into account all relevant considerations for the period subsequent to March 1 1981
The Government cannot be deprived of the legitimate duty payable on imported newsprint
371D E 32
Having regard to the peculiar features of these cases and Article 32 of the Constitution which imposes an obligation on this Court to enforce the fundamental rights and Article 142 of the Constitution which enables this Court in the exercise of its jurisdiction to make such order as is necessary for doing complete justice in any cause or matter the following order was made 371D E 1
The Government of India shall reconsider within six months the entire question of levy of import duty or auxiliary duty payable by the petitioners and others on newsprint used for printing newspapers periodicals etc
with effect from March 11981
The petitioners and others who are engaged in newspapers business shall make available to the Government all information necessary to decide the question
37G H 2
If on such reconsideration the Government decides that there should be any modification in the levy of customs duty or auxiliary duty with effect from March 11981 it shall take necessary steps to implement its decision
372A 3
Until such redetermination of the liability of the petitioners and others is made the Government shall recover only Rs 550 per MT on imported newsprint towards customs duty and auxiliary duty and shall not 299 insist upon payment of duty in accordance wish the impugned notifications
The concessions extended to medium and small newspapers may however A remain in force
372C 4
If after such redetermination it is found that any of the petitioners is liable to pay any deficit amount by way of duty such deficit amount shall be paid by such petitioner within four months from the date on which a notice of demand is served on such petitioner by the concerned authority
Any bank guarantee or security given by the petitioners shall be available for recovery of such deficit amounts
372D 5
If after such redetermination it is found that any of the petitioners is entitled to any refund such refund shall be made by the Government within four months from the date of such redetermination
A writ shall issue to the respondents
372F C BN Tiwari vs Union of India  ors 1965 2 SCR 421 T Devadasan vs Union of India  Anr  and Firm ATB Mehtab Majid  Co vs State of Madras  Anr
1963 Supp 2 SCR 435 at 446 relied on
Mohd Shaukat Hussain Khan vs State of Andhra Pradesh 975 I SCR 429 Shri Mulchand Odhavji
Rajkot Borough Municipality AIR 1970 SC 685 Koteswar Vittal Kamath vs K Rangappa Baliga  Co  and The case of State of Maharashtra etc
vs The Central Provinces Manganese Ors Co Ltd 1977 I SCR 1000 distinguished