1 324.10-wp bgp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.324 OF 2003 Asian Age Holdings Ltd. & Ors. ..Petitioners Vs. Union of India & Ors. ..Respondents Mr.Milind Sathe, Senior Advocate i/b. Bachubai Munim & Co. for petitioners. CORAM : D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATE : DECEMBER 23, 2010 P.C. The petitioner Nos.1 and 2 are the Companies incorporated under the Companies Act. They publish a news paper by name ‘Asian Age” for Delhi, Mumbai, Bangalore, Kolkata, Ahmadabad, Gowhati and London. The petitioner No.3 is the Editor-in-chief of the newspaper and petitioner No.4 is a Business Editor of that newspaper. 2. The petitioners have filed this petition challenging the direction issued by the respondents dated 15th January 2003 by which the petitioners have been “advised to stop forthwith publication and distribution of New York Times section of your newspapers” on the basis that “publication of any material with Masthead of a foreign newspaper and its distribution with an Indian newspaper amounts to publication of Indian edition of a foreign newspaper and is not permissible in terms of the extant policy of the 2 324.10-wp Government pertaining to print media in so far as it relates to news and current affairs, and, also channel of distribution of foreign news within the country”. 3. In the petition, the petitioners state that in order to maintain high standards of press as well as keep the readers well informed and supply them the latest news, thoughts and materials on the current events and happenings throughout the world, the petitioner procure materials from various news agencies and newspapers and periodicals throughout the world and publish it in their news paper. It is further stated that New York Syndication Sales Corporation, the publishers of the newspaper New York Times, has been one of the contributors of material for being published in their news paper. It is stated that each year, the second petitioner signs an agreement with the New York Syndication Sales Corporation under which New York times agreed to provide “The New York Times Branded Pages news Service consisting of a weekly section of upto 8 English pages of material (text, photos and graphics) and 12 weekly pages for publication in English only in The Asian Ages Bombay and Calcutta edition. 4. The petitioners claim that they received a letter from respondent dated 20th December, 2002 stating therein that the agreement entered into by the petitioners with the New York Times to bring out a weekly section of news and features amounts to tie-up of the petitioners’ news paper with the New York Times and that amounts to violation of assurance given in the affidavit filed by the owners of the petitioners’ news paper to the Government of India. The petitioners denied that allegations by their reply dated 10th January, 2003. Ultimately, the respondents addressed a communication dated 15th January, 2003 to the petitioners. The communication reads as under: 3 324.10-wp As you are aware you have been procurring syndicated materials from foreign newspapers and feature agencies since 1994 with the recommendation of this Ministry for the remittance of foreign exchange for procuring those services after getting the syndication agreement approved from this Ministry. Approvals for syndication agreements of M/s.Asian Age with M/s.New York Times Synidcation Sales Corporation for their OPEDS, International Herald Tribune, Asahi Shim Bum, Foreign Affairs, Science/Science Graphics Daily Crossword, News Service Elite and entertainment news service; with the M/s.Washington Post Writers Group for their Book Word Service, Non sequitter comic strip, Washington Post Crossword Service/X-word puzzle, PC and Pixel Daily and with M/s.Spectator for its news service have been given by this Ministry from time to time. Recommendations for remittances of foreign exchange for procuring these services have been given by this Ministry upto 31st December,2002. It is seen that the total quantum of such articles/features procured under syndication agreements would be less than a full page of an issue of the Asian Age. Recently, it has come to the notice of this Ministry that M/s.Asian Age Holdings Limited has incorporated in the Asian Age (Mumbai Edition) issue of 21.12.2002, an 8 page weekly special supplement containing news, features and editorial of the New York Times along with its masthead, which tantamounts to brining out an Indian edition of a foreign newspaper. It may be noted that publication of any material with masthead of a foreign newspaper and its distribution with an Indian newspaper amounts to publication of Indian edition of a foreign newspaper and is not permissible in terms of the extant policy of the Government pertaining to print media in so far as it relates to news and current affairs, and also channel of distribution of foreign news within the country. You are, therefore, advised to stop forthwith publication and distribution of the New York Times section of your newspapers. 5. Feeling aggrieved by this, the petitioners approached this Court. 4 324.10-wp 6. A reply was filed on behalf of the respondents. In paragraph No.4 of the affidavit, it was stated that in November,2002 the Government of India has issued guidelines allowing publication of Indian edition of foreign scientific/technical/and specialty magazines/periodicals/journals and foreign investments upto 74% in Indian entities publishing scientific/technical/and specialty magazines/periodicals/journals. It was further stated in paragraph No.5 of the said affidavit that; The Union Government has also issued guide-lines providing for syndication arrangements by newspapers on 11th June,2003. Hereby annexed and marked Exhibit-”C”. These provide for all registered newspapers who enter into syndication arrangements for procuring materials, including photographs, cartoons, cross-word puzzles, articles and features from foreign publications (content provider) under automatic approval route subject to the following conditions. i. The total material so procured and actually printed in an issue of the Indian publication does not exceed 7.5% of the total printed area of that issue. ii. The syndicated material does not include full copy of the editorial page or the front page of the foreign publication. iii. The mast head of the content provider publications is not utilized in the Indian publication. iv. Credit to the content provider is necessarily given prominently as a byline in the Indian edition. v. The material procured under syndication arrangement is such that has already been published in the content provider publication. a. Any case involving relaxation of any of the conditions would require to be examined by the Ministry of I & B, and, before any material is actually procured under syndication arrangement beyond the above noted conditions, the Indian publication should have applied for and obtained prior approval of the Ministry of I & B. 5 324.10-wp b. These guidelines would not apply to the cases where Ministry of I & B has issued its approval/no objection certificate for publication of Indian edition of a foreign magazine/journal/newspaper. 7. It was stated that these guidelines constitute the policy of Government of India and is applicable to all newspapers published in India. It was stated that publication of eight pages of New York Times by the petitioners has been found to be violative of Government Policy regulating print media which provides publication of Indian Edition of Foreign Newspapers and Periodicals dealing mainly with news and current affairs. After receipt of this affidavit, the petitioners amended the petition challenging the guidelines contained in the policy being violative of guarantee provided by Article 19(1)(a) of the Constitution of India. One of the challenges raised is that the guidelines issued by the Government of India amounts to placing restriction on the fundamental rights guaranteed by the Constitution under Article 19(1)(a) and therefore, it can be done only by a statutory law. Though the amendment in the petition has been allowed, the respondents have not filed any reply to the amended petition. 8. When the petition was called for final hearing, we heard learned Counsel appearing for the petitioners. None appeared for the respondents. So far as the challenge to the policy on the basis of which the letter which is impugned in the petition has been issued by the Government of India is concerned, the learned Counsel appearing for the petitioners submitted that the subject policy has been held to be illegal by learned Single Judge of the Delhi High Court by a judgment of that Court dated 16 th January, 2006 in Writ Petition (C) No.699 of 2005 in the case of Prof.Sunil Dang Vs. Union of India & Ors. The learned Counsel relied on that judgment. He further submitted 6 324.10-wp relying on the judgment of the Supreme Court in the case of Bijoe Emmanuel and Ors. Vs. State of Kerala dn ors. (1986) 3 SCC 615 that restriction on fundamental rights guaranteed by Article 19(1)(a) can be placed only by a law which has statutory force and the restriction on fundamental rights guaranteed by Article 19(a) can not be placed by merely executive instructions or departmental instructions. The learned Counsel also took us through the judgment of the Supreme Court in the case of Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. Vs. Cricket Association of Bengal and Ors. (1995) 2 SCC 161. 9. The petitioners are publishers of a newspaper. They enjoy fundamental right which is guaranteed by Article 19(1)(a) of the Constitution of India. Article 19(1)(a) of the Constitution of India reads as under:- 19. Protection of certain rights regarding freedom of speech, etc. (1) All citizens shall have the right - (a) to freedom of speech and expression; 10. Perusal of sub-article 2 of Article 19 shows that reasonable restrictions can be placed on the rights guaranteed by Article 19(1)(a). Sub article (2) of Article 19 reads as under: (2) Noting in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of the [sovereignty and integrity 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. 11. Perusal of the above Article shows that any existing law imposing reasonable restriction on the exercise of the right conferred by Article 19(1) in the interest of the [sovereignty and integrity of India,] the security of the 7 324.10-wp State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of Court, defamation or incitement to an offence is valid. It also enable the State to make any law placing reasonable restrictions on the exercise of right guaranteed by Article 19(1)(a) in the aforesaid situation. Article 19(1)(a) and 19(2) have been considered by the Supreme Court in the case of Bijoe Emmanuel and Ors. referred above. The observations of the Supreme Court made in paragraph Nos.15 to 17 in our opinion are relevant, which read as under: 15. If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1). 16. We have referred to Art. 19(1)(a) which guarantees to all citizens freedom of speech and expression and to Art. 19(2) which provides that nothing inArt. 19(1)(a) shall prevent a State from making any law, in so far as such law impose reasonable restrictions on the exercise of the right conferred by Art. 19(1)(a)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. The law is now well settled that any law which may be made under clauses (2) to (6) of Art. 19 to regulate the exercise of the right to the freedoms guaranteed by Art. 19(1)(a) to (e) and (g) must be 'a law' having statutory force and not a mere executive or departmental instruction. In Kharak Singh v. State of U.P., AIR 1963 SC 1295 the question arose whether a police regulation which was a mere departmental instruction, having no statutory basis could be said to be a law for the purpose of Art.19(2) to (6). The Constitution Bench answered the question in the negative and said, "Though learned Counsel for the respondent started by attempting such a justification by invoking s.12 of the Indian Police Act he gave this up and conceded that the regulations contained in Ch. XX had no such 8 324.10-wp statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "a law" which the State is entitled 530 to make under the relevant cls. (2) to (6) of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19(1), not would the same be "a procedure established by law" within Art. 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks, to restrain the State from taking action under the regulations. " 17. The two circulars on which the department has placed reliance in the present case have no statutory basis and are mere departmental instructions. They cannot, therefore, form the foundation of any action aimed at denying to citizen's Fundamental Right under Art. 19(1)(a). (Emphasis supplied) 12. Perusal of the above quoted observations from the judgment of the Supreme Court show that the term “law” which is referred to in Article 19(1) (a) is to be understood as “law” having statutory force and not a mere executive or departmental instruction. So far as the freedom of speech is concerned, in its judgment in the case of Secretary, Ministry of Information & Broadcasting, Govt. of India and Ors. referred above the Supreme Court has considered the entire law on the subject and has summarized it in paragraph No.43 of that judgment, which reads as under: 43. We may now summarise the law on the freedom of speech and expression under Article 19 [1] (a) as restricted by Article 19 [2]. The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self expression which is an important means of free conscience and self fulfillment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse 9 324.10-wp so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country as well as abroad as impossible to reach. 13. It, thus, becomes clear that as a result of these judgments of the Supreme Court, the law can be taken to be now well settled that the reasonable restrictions which are permitted by Article 19(2) can be placed on fundamental rights guaranteed under Article 19(1)(a) only by a law having statutory force and not by a mere policy decision. Article 19(1)(g) guarantees right to practice any profession, or to carry on any occupation, trade or business. Article 19(6) like Article 19(2) permits a reasonable restrictions being placed on the right guaranteed under Article 19(1)(g). The Supreme Court has considered the provisions of Article 19(1)(g) and Article 19(6) in relation to the right to establish educational institutions and charge fees. In its judgment in the case of State of Bihar and Ors. Vs. Project Uchcha Vidya, Sikshak Sangh and Ors. (2006) 2 SCC 545, the following observations made by the Supreme Court : “The right to manage an institution is also a right to property. In view of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation & Others v. State of Karnataka [(2002) 8 SCC 481] establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution of India. A 19 WP (L) No. 1876 of 2010 citizen cannot be deprived of the said right except in accordance with law. The requirement of law for the purpose of clause (6) of Article 19 of the Constitution of India can by no stretch 10 324.10-wp of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution of India or otherwise. Such a law, it is trite, must be one enacted by legislature.” (emphasis supplied) 14. Thus, we find that the right guaranteed to the petitioners is being restricted by the respondents without making any law, it will amount to denying the petitioners’ fundamental right guaranteed by Article 19(1)(a). In our opinion, therefore, the respondents were not justified in issuing the letter dated 15th January, 2003. In the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clauses (a) and (c)(i). No order as to costs. (N.D.DESHPANDE,J.) (D.K.DESHMUKH,J.)