Case: Sakal Papers (P) Ltd. &amp; Others Vs. Union of India

2. The first petition is by a private limited company carrying on business inter alia of publishing daily and weekly newspapers in Marathi named "Sakal" from Poona and by two persons who are the only shareholders in that company. The second and third petitions are preferred by two readers of "Sakal" who also challenge the constitutionality of the Act. Certain parties were allowed to intervene. They supported the Union of India, the respondent in all these petitions and sought to uphold the validity of the Act and the Order. In view of the common argument adduced before us it would be convenient to deal with the first petition only in full.3. The newspaper "Sakal" was started in the year 1932 and it is claimed that it has a net circulation of 52,000 copies on week days and 56,000 copies on Sundays in Maharashtra and Karnataka and as such plays a leading part in the dissemination of news and views and in moulding public opinion in matters of public interest.4. The daily edition of the newspaper contains six pages a day for five days in a week and four pages on one day. This edition is priced at 7 nP. The Sunday edition consists of ten pages and is priced at 12np. About 40 per cent of the space in the newspaper is taken up by advertisement matter and the rest is devoted to news, articles, features, views etc. It is claimed on behalf of the petitioners that one of the special features of the newspaper is coverage of foreign news and despatches on foreign affairs. It is claimed on behalf of the petitioners that this paper is not aligned with any political party and that upon controversial questions the public look up to it for impartial appraisement of the issues involved and for guidance.5. Briefly stated the effect of the Act and of the impugned Order is to regulate the number of pages according to the price charged, prescribe the number of supplements to be published and prohibit the publication and sale of newspapers in contravention of any Order made under Section 3 of the Act. The Act also provides for regulating by an Order under S. 3, the sizes and area of advertising matter in relation to the other matters contained in newspaper. Penalties are also prescribed for contravention of the provision of the Act or Order.6. We may mention here that in the year 1952 the Government of India appointed a Press Commission for enquiring into a large number of matters concerning the Press and one of the recommendations of the Commission was to enact a law such as the one impugned before us. This law is alleged by, the respondent to have been made to give effect to that recommendation, Both the sides place reliance upon the findings of the Press Commission and have invited us to accept these findings, though not necessarily the recommendations.

Reasoning:
25. A bare perusal of the Act and the Order thus makes it abundantly clear that the right of a newspaper to publish news and views and to utilise a many pages as it likes for that purpose is made to depend upon the price charged to the readers. Prior to the promulgation if the Order every newspaper was free to charge whatever price by State regulation to publish news and views. This liberty is obviously interfered with by the Order which provides for the maximum number of pages for the particular price charged. The question is whether this amounts to any abridgment of the right of a newspaper to freedom of expression. Our Constitution does not expressly provide for the freedom of press but it has been held by this Court that this freedom is included in "freedom of speech and expression" guaranteed by cl. (1) (a) of Art.right to propagate ones ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his idea every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent under Art. 19(2), not merely to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he choose subject of course to the limitations permissible under a law competent under Art. 19(2). It cannot be gainsaid that the impugned order seeks to place a restraint on the latter aspect of the right by prescribing a price page schedule. We may add that the fixation of a minimum price for the number of pages which a newspaper is entitled to publish is obviously not for ensuring a reasonable price to the buyers of newspaper but for expressly cutting down the volume of circulation of some newspaper by making the price so unattractively high for a class of its readers as is likely to deter it from purchasing such newspaper.After the schedule comes into force it will not be open to a newspaper proprietor to charge less than a certain minimum price if he wants to give a particular number of pages in his newspaper. If he should contravene this order he will incur a penalty. Similarly he cannot publish supplements in excess of four as and when he chooses, except with the permission of Government. The Order does not indicate the circumstances which would entitle a newspaper proprietor to secure the special permission of Government. Apparently, whether to allow an additional supplement or not would be dependent on the sweet will and pleasure of the Government and this would necessarily strike at the root of the independence of the press.It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense, Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear, that the right to freedom of speech and expression carries with it the right to publish and circulate ones ideas, opinions and views with compete freedom and by resorting to any available means of publication subject again to such restrictions as could be legitimately imposed under cl. (2) of Art. 19.The first decision of this Court in which this was recognized is Romesh Thappar v. State of Madras, 1950 SCR 594: (AIR 1950 SC 124  ). There, this Court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases this Court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V.G. Row, 1952 SCR 597 : (AIR 1952 SC 196  ), the question of the reasonableness of restrictions which could be imposed upon a fundamental right has been considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into the judicial verdict. In Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., 1954 SCR 674   ; (AIR 1954 SC this Court has pointed out that in construing the Constitution it is the substance and the practical result of the act of the state that should be considered rather than its purely legal aspect. The correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the state in placing theThough 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. Thus 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 a newspaper even by a small amount such as one nP. in order that its present size be maintained. would adversely affect itsone thing, requiring newspapers to reduce their sizes would be compelling them to restrict the dissemination of news and views and thus directly affecting their right under Art. 19(1)(a)But it is said that the object could be achieved by reducing the advertisements. That is to say, the newspapers would be able to devote the same space which they are devoting today to the publication of news and views by reducing to the necessary extent the space allotted to advertisements. It is pointed out that newspapers allot a disproportionately large space to advertisements. It is true that many newspapers do devote very large areas to advertisements. But then the Act is intended to apply also to newspapers which may carry no or very few advertisements. Again, after the commencement of the Act and the coming into force of the Order a newspaper which has a right to publish any number of pages for carrying its news and views will be restrained from doing so except upon the condition that it raises the selling price as provided in the schedule to the Order. This would be the direct and immediate effect of the Order and as such would be violative of the right of newspapers guaranteed by Art.advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertisement revenue. That would force the newspaper either to close down or to raise its price. Raising the price further would affect the circulation still more and thus a vicious cycle would set in which would ultimately end in the closure of the newspaper. If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of the Act in regulating the space for advertisements is stated to be to prevent unfair competition. It is thus directed against circulation of a newspaper. When a law is intended to bring about this result there would be a direct interference with the right of freedom of speech and expression guaranteed trader Art.right to freedom of speech and expression is an individual right guaranteed to every citizen by Art. 19(1)(a)) of the Constitution. There is nothing in cl. (2) of Art. 19 which permits the State to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under cl.(2) of Art. 19. It is admitted that the impugned provisions cannot be justified on the grounds referred to in the aforesaida 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 Art. 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and cl. (1) does not prefer one freedom to another. That is the pain 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 on another freedom.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 ones 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 provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it 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 newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself.43. In these circumstances the Act and the Order cannot be sustained upon the ground that it merely implements a recommendation of the Press Commission and was thus not made with an ulterior object. The decision in Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671  : (AIR 1960 SC 554  ) upon which reliance was placed by the respondent in support of the contention that where an enactment is challenged on the ground of violation of fundamental rights it is legitimate to take into consideration several factors including the purpose of the legislation, the mischief intended to be suppressed, the remedy proposed by the legislature and the true reason for that remedy does not, therefore, arise for consideration. Similarly, Since the Act taken in conjunction with the Order made thereunder operates as a restraint on the freedom of speech and expression of newspapers the mere fact that its object was to suppress unfair practices by newspapers would not validate them. Carrying on unfair practices may be a matter for condemnation. But that would be no ground for placing restrictions on the right of circulation.The legitimacy of the result intended to be achieved does not necessarily imply that every means to achieve it is permissible; for even it 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 infringe the provision is otherwise legal.46. Finally it was said that one of its objects is to give some kind of protection to small or newly started newspapers and, therefore, the Act is good. Such an object may be desirable but for attaining it the State cannot make inroads on the right of other newspapers which Art. 19(1)(a) guarantees to them. There may be other ways of helping them and it is for the State to search for them but the one they have chosen falls foul of the Constitution.47. To repeat, the only restrictions which may be imposed on the rights of an individual under Art.19(1)(a) are those which cl.(2) of Art.19 permits and no other.