IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.1797 OF 2009 & M.P.NOS.1 AND 2 OF 2009 K.A.Mohammed Ibrahim ... Petitioner versus 1.The District Revenue Officer Salem City, Salem. 2.The Commissioner of Police Salem City, Salem. 3.The Tahsildar Salem City, Salem. ... Respondents PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of certiorarified mandamus, calling for the records pertaining to impugned order in M.M.No.39893/2008/C4 dated 13.10.2008 from 1st respondent and quash the same consequently direct the 1st respondent to permit the petitioner to publish his monthly magazine named "URIMAIMOZHI". For Petitioner : Mr.S.Manoharan For Respondents : Mrs.Lita Srinivasan Government Advocate O R D E R The petitioner has filed the present writ petition challenging the order dated 13.10.2008 passed by the first respondent and for a consequential direction to permit him to publish his monthly magazine named "URIMAI MOZHI". 2.The petitioner is the President of the "Tamil Nadu Human Rights Movement" which is functioning in Salem City. The organization is fighting for social justice and struggles for the interest of the downtrodden people. The organization also struggles against violations of Human Rights and Police atrocities and also against the social evils. He decided to start a monthly magazine to bring https://hcservices.ecourts.gov.in/hcservices/ awareness among the public regarding Human Rights and Constitutional Rights guaranteed in the Constitution of India. He made a representation to the first respondent on 21.11.2007 seeking permission to publish magazine in any one of the four names as the title including "URIMAI MOZHI". 3.Based on his representation, the first respondent sent a letter dated 29.01.2008 to the Assistant Press Registrar requesting him to inform the availability of the title to start the publication. 4.The Assistant Press Registrar, vide his letter dated 13.05.2008 informed that his office approved "URIMAI MOZHI" as the title of the magazine to be published by the petitioner. 5.Hence, the petitioner sent a letter dated 29.05.2008, requesting the first respondent to authenticate the declaration made vide his application dated 21.11.2007 so as to bring his publication. 6.The first respondent sent a letter dated 25.06.2008 to the second and third respondents to send a report after holding proper enquiry, based on the application made by the petitioner seeking permission to publish a monthly magazine in the name 'URIMAI MOZHI". 7.While so, the first respondent passed the impugned order dated 13.10.2008 refusing to permit the petitioner to publish the monthly magazine in the name of 'URIMAI MOZHI". The impugned order is based on the report dated 25.07.2008 of the third respondent and the report dated 07.08.2008 of the second respondent. Aggrieved by the said order dated 13.10.2008 passed by the first respondent, the petitioner has filed the present writ petition. 8.This Court ordered notice of motion on 30.01.2009. The respondents No.1 and 3 have filed their counter affidavit. 9.Heard Mr.S.Manoharan, learned counsel for the petitioner and Mrs.Lita Srinivasan, learned Government Advocate for the respondents. 10.The learned counsel for the petitioner submits that the impugned order is in violation of Section 5 of the Press and Registration of Books Act, 1867 (in short "the Act"). He also submits that the impugned order was passed in blatant violation of principles of natural justice. It is also submitted that when the first respondent relied on the reports of the second and third respondents, those reports were not furnished to him before passing the impugned order. It is also submitted that the impugned order is violative of Article 19 (1) (a) and (g) of the Constitution that protects freedom of speech; expression and the right to practice any https://hcservices.ecourts.gov.in/hcservices/ profession or to carry on any occupation, trade or business. 11.The learned counsel for the petitioner also submits that the Act nowhere contemplates for getting a report from the Police official for authenticating the declaration made by the publisher who intends to publish a magazine. According to him, before publishing a magazine, the Act contemplates only making of a declaration before the first respondent and the first respondent has to authenticate the same, if the petitioner has provided the details required under Section 5 of the Act. 12.On the other hand, the learned Government Advocate strenuously contends that though the Act nowhere contemplates calling for reports from the police official regarding the antecedents of the intending publisher, the State could very well call for the report from the Police Officer about the antecedents. She further contends that there is nothing wrong in the first respondent calling for the report from the second respondent on the application made by the petitioner for publication of a magazine. Since the second respondent gave a report that there were seven cases pending against the petitioner, the first respondent correctly refused permission to the petitioner to publish a magazine. It is further submitted that the petitioner did not make application as prescribed in Form – I under Rule 3 of the Registration of Newspapers (Central) Rules, 1956 (in short "the Rules"). It is further submitted that before passing the impugned order, the petitioner was given a personal hearing and therefore, the principles of natural justice was complied with. It is also submitted that there is a provision for appeal under Section 8C of the Act before the Press Registration Appellate Board against the order of the first respondent. Hence, this Court need not exercise its extraordinary jurisdiction under Article 226 of the Constitution, when there is availability of alternate remedy. 13.I have considered the submissions made on either side. The petitioner made an application on 21.11.2007 to the first respondent stating that he proposed to publish a periodical suggesting anyone of the four names as the title for the periodical. He wanted the application be forwarded to the Registrar of Newspapers to get the title approved. He sought the first respondent to authenticate the declaration under the Act. 14.Before dealing with the facts and circumstances of the case, a survey of the Act that governs the field, is required. It is a statute enacted during the British period, long back in 1867. The Act contains VI parts and 23 Sections. Part–I is "Preliminary" https://hcservices.ecourts.gov.in/hcservices/ containing two Sections. Part–II is with caption, "Printing Presses and Newspapers" and contains Sections 3 to 8C. Part–III is under the caption "Delivery of Books" and contains Sections 9 to 11B. Part–IV is under the caption "Penalties" and contains Sections 12 to 17. Para V is under the caption "Registration of Books" and contains Sections 18 and 19. Part-VA relates to "Registration of Newspapers" and that contains Sections 19A to 19L. Part – VI is under the caption "Miscellaneous" and contains Secs. 20 to 23. 15.Section 1 (1) of the Act is the definition Section. Paper, Book, Newspaper, Magistrate, Press Registrar, etc., are defined under Section 1(1) of the Act. "Paper" is defined to mean any document, including a newspaper, other than a book. "Book" is defined to include every volume, part or division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed. Thus, "Paper" and "Book" are given wide meaning. "Newspaper" means any printed periodical work containing public news or comments on public news. It also defines "Magistrate". "Magistrate" means any person exercising the full powers of a Magistrate and includes a Magistrate of police. "Press Registrar" means the Registrar of Newspapers for India appointed by the Central Government under Section 19A and includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar. 16.Section 3 of the Act contemplates that every book or paper printed within India shall be printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published) the name of the publisher, and the place of publication. 17.Section 4 of the Act contemplates "declaration" to be made by the keeper of the printing press from where the books or papers are printed. Without declaration being made, he shall not keep in his possession any press for the printing of books or papers. The format of declaration is prescribed under Section 5 of the Act. 18.Section 5 of the Act contemplates "Rules as to publication of newspapers". Section 5, which is relevant for this case, is extracted here-under: "5. Rules as to publication of newspapers No newspaper shall be published in India, except in conformity with the rules hereinafter laid down: (1) Without prejudice to provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication. https://hcservices.ecourts.gov.in/hcservices/ (2) The printer and the publisher of every such newspaper shall appear in person or by agent authorised in this behalf in accordance with the rules made under section 20, before a District, Presidency or Sub-Divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration: "I A.B., declare that I am the printer (or publisher, or printer and publisher) of the newspaper entitled – and to be printed or published, or to be printed and published, as the case may be at....-". And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted. (2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed. (2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompanied by an authority in writing from the owner authorising such person to make and subscribe such declaration. (2C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published. (2D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be contained. (2E) As often as the ownership of a newspaper is changed, a new declaration shall be necessary: (3) As often as the place of printing or publication is changed, a new declaration shall be necessary: https://hcservices.ecourts.gov.in/hcservices/ PROVIDED that where the change is for a period not exceeding thirty days and the place of printing or publication after the change is within the local jurisdiction of the Magistrate referred to in rule (2), no new declaration shall be necessary if - (a) a statement relating to the change is furnished to the said Magistrate within twenty-four hours thereof; and (b) the printer or publisher or the printer and publisher of the newspaper continues to be the same. (4) As often as the printer or the publisher who shall have made such declaration as is aforesaid shall leave India for a period exceeding ninety days or where such printer or publisher is by infirmity or otherwise rendered incapable of carrying out his duties for a period exceeding ninety days in circumstances not involving the vacation of his appointment a new declaration shall be necessary. (5) Every declaration made in respect of a newspaper shall be void, where the newspaper does not commence publication- (a) within six weeks of the authentication of the declaration under section 6, in the case of a newspaper to be published once a week or oftener; and (b) within three months of the authentication of the declaration under section 6, in the case of any other newspaper, and in every such case, a new declaration shall be necessary before the newspaper can be published. (6) Where, in any period of three months, any daily, tri-weekly, bi-weekly, weekly or fortnightly newspaper publishes issues the number of which is less than half of what should have been published in accordance with the declaration made in respect thereof, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued. (7) Where any other newspaper has ceased publication for a period, exceeding twelve months, https://hcservices.ecourts.gov.in/hcservices/ every declaration made in respect thereof shall cease to have effect, and a new declaration shall be necessary before the newspaper can be re-published. (8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same. PROVIDED that no person who does not ordinarily reside in India, or who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (9 of 1875), or of the law to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper. 19.Section 6 of the Act contemplates, "authentication of declaration". Section 6 is as follows: "6.Authentication of declaration Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authenticated by the signature and official seal of the Magistrate before whom the said declaration shall have been made: PROVIDED that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless of Magistrate is, on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State. Deposit: One of the said originals shall be deposited among the records of the office of the Magistrate, and the other shall be deposited among the records of the High Court of Judicature, or other principal Civil Court of original jurisdiction for the place where the said declaration shall have been made. Inspection and supply of copies: The officer- in-charge of each original shall allow any person to inspect that original on payment of a fee of one https://hcservices.ecourts.gov.in/hcservices/ rupee, and shall give to any person applying a copy of the said declaration, attested by the seal of the Court which has the custody of the original, on payment of a fee of two rupees. A copy of the declaration attested by the official seal of the Magistrate, or a copy of the order refusing to authenticate the declaration, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar." 20.Section 8C of the Act provides for "Appeal" against the order passed by a Magistrate refusing to authenticate a declaration under Section 6 or cancelling a declaration under Section 8B. Section 8C of the Act is extracted here-under: "8C. Appeal (1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration under Section 6 or cancelling a declaration under Section 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to the called the Press and Registration Appellate Board consisting of a Chairman and another member to be nominated by the Press Council of India established under section 4 of the Press Council Act, 1978 (37 of 1978), from among its members: PROVIDED that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time. (2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it things fit, confirm, modify or set aside the order appealed against. (3) Subject to the provisions contained in Sub- section (2), the Appellate Board may, by order, regulate its practice and procedure. (4) The decision of the Appellate Board shall be final. https://hcservices.ecourts.gov.in/hcservices/ 21.Section 19C of the Act contemplates "certificate of registration" and the same is extracted here-under: "19C. Certificates of registration On receiving from the Magistrate under section 6 a copy of the declaration in respect of a newspaper and on the publication of such newspaper, the Press Registrar shall, as soon as practicable thereafter, issue a certificate of registration in respect of that newspaper to the publisher thereof. 22.The above scheme of the Act makes it very clear that before publishing a newspaper that includes a periodical, the publisher is required only to have authentication of declaration by the Magistrate, the first respondent herein. This is made clear by Section 5 of the Act. It states that no newspaper shall be published in India except in conformity with the rules herein after laid down under Section 5. As per Section 5 (2), the publisher / printer shall appear before the Magistrate in person and make a declaration. As per Section 5(2A), the declaration should specify (i) the title of the newspaper (ii) the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed. Section 20 is referred to in Section 5(2) of the Act. That is, the publisher and the printer shall make a declaration in accordance with the rules framed by the State Government under Section 20. But the State Government has not framed any rules under Section 20 of the Act. Thus, the declaration should contain only the details required under Section 5(2) and 5(2A) of the Act. Section 5(2C) makes it very clear that a declaration under rule 5(2) and authenticated under Section 6 is the only requirement before publication of the newspaper. No more conditions are imposed for publishing a newspaper. The only other condition stipulated in the proviso to Section 5 of the Act is that the person intends to publish/print the periodical should be a resident of India and who should have attained majority. 23.Thus the Act makes it very clear that if the printer and publisher appears in person before the first respondent – Magistrate and makes a declaration giving the details as required under Section 5(2) and 5(2A) of the Act and if the person is a resident of India and he has attained majority, the first respondent has no option but to authenticate the declaration. Even the British thought of safeguarding the right to expression and freedom of speech and the right to carry on any profession or occupation, trade or business. Hence, a simple procedure is contemplated. That is, on a mere declaration before the first respondent by the printer and the publisher, the first respondent shall authenticate the declaration on verifying whether the details furnished therein are true. The first respondent shall not go into the antecedents of the printer or https://hcservices.ecourts.gov.in/hcservices/ publisher of the newspaper. At this juncture, it is relevant to quote Lord Mansfield on the "Freedom of Press". While dealing with the Freedom of Press guaranteed under Article 19(1) of the Constitution in the Book, "Constitutional Law of India" by Dr.J.N.Pandey, the views of Lord Mansfield on Freedom of Press is stated. The same is as follows: "The liberty of the Press" as defined by Lord Mansfield, "consists in printing without any licence subject to the consequences of law." Thereafter, Dr.J.N.Pandey, reiterates the views of Lord Mansfield in the aforesaid book, as follows: "Thus the liberty of the press means liberty to print and publish what one pleases, without previous permission." 24.In INDIAN EXPRESS NEWSPAPERS VS. UNION OF INDIA reported in 1985 (1) SCC 641 speaking on the utility of freedom of press, the Honourable Apex Court observed as follows: "The expression "freedom of the press" has not been used in Article 19 but it is comprehended within Article 19(1)(a). The expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. 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. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate." 25.Therefore, the publisher and printer are required to make a declaration furnishing the details as required under Section5 (2) and 5(2A) of the Act alone. Hence, the contention of the learned Government Advocate that the petitioner failed to make an application under Form–I of the Rules has no substance, since the Form–I is prescribed under the Rules framed by the Central Government. Furthermore, the first respondent nowhere states in the impugned order that he rejected the petitioner's request as the application was not in the prescribed form. Even in the counter affidavit filed before this Court, no such plea was taken. Hence, the same is rejected. https://hcservices.ecourts.gov.in/hcservices/ 26.The first respondent ought not to have addressed the letter to the second respondent to enquire about the petitioner and to submit a report about his antecedents which is not required under the Act. Hence, I am of the considered view that the order of the first respondent is without jurisdiction. 27.The learned Government Advocate has produced the entire file for perusal of this Court and this Court also perused the same. The third respondent is subordinate to the first respondent. The third respondent verified the truthfulness of the particulars provided by the petitioner in the declaration made under Section 5(2) of the Act. The report of the third respondent dated 25.07.2008 is extracted here-under: "nryk; tl;lk;. fpr;rpg;ghisak; ehuhaz efh;. Kjy;bjU. fjt [ vz; 33/15-I nrh;e;j jpU/nf/Kcwk;kJ ,g;uhcwpk; vd;gth; chpik bkhHp vd;w jiyg;gpy; khj ,jH; elj;j mDkjp tH';ff; nfhhpa kD kPJ fPH;fz;lthW vdJ mwpf;ifia bjhptpj;Jf; bfhs;fpnwd;/ kDjhuh; jkpH;ehL kdpj chpik ,af;fk; vd;w mikg;gpd; khepy jiytuhf cs;shh;/ ,e;j mikg;gpd; K:yk; rK:f nritfs; bra;J tUtjhf tprhuizapy; bjhpa tUfpwJ/ ,jid mog;gilahff; bfhz;L kDjhuh; bghJ nritf;Fk; kdpj chpikfs; gw;wp vLj;Jf; Twtjw;fhft [k; chpik bkhHp vd;w jiyg;gpy; khjhe;jpu gj;jphpf;if bjhl';f chpkk; nfhhpa[s;shh;/ nkw;go khjhe;jpu gj;jphpf;ifapd; mr;R br;aJ ju brd;id. Vy;!;nuhL. Kf;jh; cd;dprhngfk; bjU/ fjt[ vz;/8 vd;w Kfthpapy; , a';fptUk; etn$hjp mr;rfk; xg;g[f; bfhz;Ls;sJ/ nkw;go mr;rfk; brd;id. VGk;g{h;. Kjd;ik bkl;nuh ghypod; ePjpgjp mth;fspd; ep/K/4696/85 ehs;. 17/12/1985-d; go m';fPfhpf;fg;gl;Ls;sJ/ kDjhuh; nkw;go khj ,jH; gj;jphpf;if bjhl';f gj;jphpf;if jiyik mYtyfj;jpw;F kD bra;J gj;jphpf;if jiyik mYtyfj;jpypUe;J mDkjp vz;/TNTAM-17977-25.02.08-d; go mDkjpa[k; bgw;Ws;shh;/ nkw;go ,jH; jkpHpy; mr;R bra;J khjk; xUKiw btspaplt[k;. nkw;go gpujp xd;Wf;F U/10 tPjk; tpw;gid bra;at[k; cj;njrpj;Js;shh;/ vdnt kDjhuh; nfhUk; chpik bkhHpkhj ,jH; elj;j chpkk; tH';fyhk; vdt[k;. ,j;Jld; tprhuiz Mtz';fs; mDg;gp[a[s;nsd; vdt [k; gzpt[ld; bjhptpj;Jf; bfhs;fpnwd;//" 28.One cannot take exception for getting a report from his subordinate about the truthfulness of the declaration made by the petitioner. In any event, the said report was in favour of the petitioner. However, the other report dated 07.08.2008 of the second https://hcservices.ecourts.gov.in/hcservices/ respondent is against the petitioner. The report dated 07.08.2008 of the second respondent is extracted here-under: "ghh;itapy fhQqk; j';fs; fojk; bjhlh;ghf nkw;bfhz;l tprhuizapy; jpU/nf/V/KfkJ ,g;uhcwPk;. j/bg/ mg;Jy;fhjh;. 15/33. ehuhaz efh;. Kjy; fpuh!;. fpr;rpghisak;. Nryk; kdpj chpk ,af;fj;jpd; jiytuhf vz;/70. fPH;jsk;. khefuhl;rp tzpf tshfk;. giHa ngUe;J epiyak;. nryk; -1 vd;w Kfthpapy; vz;bza; tpahghuk; bra;J tUfpwhh;/ 2/kDjhuh; kPJ nryk; khefh; kw;Wk; <nuhL khtl;lj;jpy; jpUl;L kw;Wk; muR gzpahsh;fis gzp bra;ahtplhky; jLj;jy; nghd;w gy Fw;w tHf;Ffs; epYitapy; cs;sd/ jw;nghJ jpUl;L tHf;fhdJ ePjpkd;wj;jpy; epYitapy; cs;sJ/ kDjhuhpd; Fzeyd;fs; kw;Wk; eltof;iffs; jpUg;jpfukhjhf ,y;iy/ vdnt kDjhuh; khj ,jH; elj;j mDkjp tH';Ftjw;F Ml;nrgiz bjhptpj;Jf;bfhs;fpnwd;" 29.When the adverse report was relied on by the first respondent to pass the impugned order, the