Bennett Coleman Company v. Union of India

Abstract

In India democracy is primarily a political vehicle for rendering freedom. Since freedom is the most basic human need which plays an inevitable role in the enhancement of human personality. It is incumbent on the development of human relationships and the progress of society. Freedom is used to communicate and receive knowledge and also, the formation and expressing one’s opinions, deemed as foundations of democracy. Freedom can be contemplated in both positive and negative aspects. In Positive sense, since freedom of speech is guaranteed by our constitution that says we are free to express our views and opinion without having fear. But curtailing certain aspects of fundamental freedom could be problematic because it taking away our Fundamental right. Especially if I relate it with an instance, a writer or a painter with creativity as a society is a very elevated motion of arts. The thing is that arts reflect the society of its time and this is the product of the society of its time and what happens if you are going to restrict the creation of arts and its dissemination. The problem then comes up is that are we living behind the distorted or whooped ideas of our times.

In the negative sense, freedom of speech and expression are qualified, and there cannot by anything as absolute freedom, because if uh are living in society there has to be some parameter in which you are bound. If uh have freedom of speech and expression and you are hurting another freedom of expression. However, Freedom of speech and expression guaranteed under ARTICLE 19(1) (a) of the Indian constitution denotes that everyone has a right to freely express their views and opinion, and propagate their ideas, but there has to be a reasonable restriction on the certain grounds: Security of State; Friendly relations with foreign states; No similar provision is present in any other Constitution of the world; Public Order: Next restriction prescribed by the constitution is to maintain public order; Decency or morality; Contempt of Court; Defamation;  Incitement to an offense; Sovereignty and integrity of India.

Introduction

Indian constitution. A free press plays an incumbent role in the effective functioning of a democracy. The expression “Freedom of Press” signifies that everybody has a right to print and publish without any interference from the public authority or any other state. Under our Constitution, there is no such thing as freedom of the press. Freedom of the press is an essential factor in the freedom of speech and expression. The press cannot claim any additional rights than what is just available to an average citizen. And this right is subjected to reasonable restriction given under Article 19(2) of the Indian Constitution. The Supreme Court in its previous judgments held that “freedom of speech goes to the heart of the natural right of organized freedom and loving society to “impart and acquire information about that common interest”. If any  limitation is placed which results in the society being deprived of such right then no doubt it would fall within the guaranteed freedom under Article 19(1)(a) of the constitution.  Freedom of speech and expression of the press is mainly developed through the copious of a judicial decision. This similar concept of freedom of press will look forward in the case of “Bennett Coleman v/s Union of India”.

Case Analysis: Bennett Coleman and Co. v/s Union of India

Facts of the Case

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

Firstly, a new newspaper could not be started by any establishments which owning more than two newspapers if at least one of which is daily;

Secondly, the maximum no of newspapers published shall not exceed 10%.

Thirdly, no of a newspaper may not be increasing, more than 20% that are under ten pages;

Lastly; the interchangeability of newsprint had not allowed between different editions of the same paper or distinct newspapers of the same establishment and agencies. The government contended that by doing this, the reputed or large newspaper agencies monopoly would end up in the market and on the other hand, it would be beneficial for the small newspaper agencies to grow in the market. Although, a lot of big newspaper agencies, their maximum portion of newspaper contain advertisement only. The news limits were very low in the newspaper. So at that time, it was benefitted by reducing page limit that the big newspaper agencies have to publish their advertisement within the limit of 10 pages. And, this would not be affected in the publication of news.

However, the petitioners were not permitted to make harmony in circulation, etc., under the newsprint policies even within the quota limit. This was constitutionally challenged for violation of ARTICLE 14 and ARTICLE 19(1) (a) of the Indian Constitution.

It was further argued by the respondent side that the petitions were not maintainable because companies do not enjoy their fundamental Right; these rights are mainly guaranteed only to natural persons. Although, Company is an artificial person, which cannot come under the category of a natural person. Furthermore, It was argued from the responded side that Article 358 of the Indian Constitution stipulates the emergency power given in the Constitution’s provision.  During emergencies, the fundamental cannot be challenged on the violation of any ground mentioned under part III of the Constitution. Bu these FR could be taken away by the lawful authority passed at the time of emergency and not the one which was passed earlier. They also initiated a “subject-matter test” of restriction rather than an “effects test.”

According to me, the restrictions were absolutely valid because they regulated the commercial method of newspapers to fend monopolies in the market sector, through which any impact on freedom of speech and expression was incidental. Therefore, they asserted a preliminary question of whether increases in the import of newsprint was a question of public policy that must not be challenged on any grounds except “mala fide.”

Issues Raised

1. The preliminary question was whether the petitioners were being companies could contravene the fundamental rights?
2. Whether Art. 358 of the Indian Constitution was a moratorium to any challenge by the petitioner’s side on the violations of fundamental rights?
3. Whether the restriction imposed on newsprint import under the 1955 Order was the violation of Art. 19(1) (a) of the Constitution?
4. Whether the newsprint Policy fall within the Section5 (1) of the Import, Control Order 1955 was valid or not?
5. Whether Clauses 3 and 3A of Section 3 of the Newsprint Order, 1962 were violative of Article 14 and Article 19(1) (a) of the Constitution?

Supreme Court Verdict

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

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

Further, publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the condition of labor, price of material, availability of advertisement, size of paper and the different kinds of news comments and’ views and advertisement, size of paper and the differences which are to be published and circulated. The law which lays excessive and prohibited burden which would restrict the circulation of a newspaper will not be saved by ARTICLE 19 (2) of the Indian Constitution. The Court’s opinion that freedom of the press was an essential element of freedom of speech expression guaranteed under ARTICLE 19(1)(a) of the Indian Constitution.

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

As we are well aware that freedom of speech of expression and press is mainly developed through the judicial process:

1. Romesh Thaper v/s The State of Madras: – In this case, Justice Patali Shashtri observed that “freedom of speech of expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation”.
2. Sakal Paper Pvt. Ltd. And others v/s Union of India: The court observed that as per the provision of daily newspaper (price and Page) order, 1960. This Act empowered the Central government to regulate the no of pages in newspapers according to the price charged. The court held that the Act and the order were void as they violated ARTICLE 19(1) (a) of the Indian Constitution and were not saves by ARTICLE. 19(2) – “it has been further held that the right to freedom of speech cannot be taken away with the object of restricting on the business activities of a citizen “
3. Prabha Dutt and Ors v/s Union of India: In this case, the petitioner was the chief reporter of the Hindustan Times. She filed a writ petition of “Quo Warranto” before the SC to direct a superintend of Tihar Jail, to allow her to interview of 2 convicted who are under a sentence of death. While considering this writ court again says that right to freedom of speech and expression confer under ARTICLE 19(1)(a) of the Indian constitution, which also includes right to freedom of the press, is not an absolute right, nor indeed does it confer any right on the press, to have unrestricted access to means of livelihood”

In the instant case, the right case by the petitioner is not the right to express any particular view or opinion but the right to means of information through the medium of an interview of 2 prisoners who are sentenced to death. No such right can be claimed by the press unless, in its first instances, the person who sought to be interviewed is willing to be interviewed. The existence of a free press does not imply or spell out any legal obligation on the citizen to supply information to the press.

• Indian Express Newspaper Pvt. Ltd. v/s Union of India: The apex court held that “all commercial advertisement cannot be denied the protection of ARTICLE 19(1) (a) of the Indian Constitution merely because they are issued by the businessman”

Conclusion

In my open-ended conclusion, I would like to say that in an emerging and developing democracy like India, the institution of the press has a special role to play in the planning process of the nation for the future. The right to freedom of the press to citizen would necessarily undermine the power to influence public opinion and would run counter to the principle of democracy itself.  

References

1. Indian Express Newspaper Pvt. Ltd. v/s union of India: AIR [1985] 2 S.C.R. 287
2. Royal Proclamation, prohibits, license and monopoly, decrease of the star chamber (see may, Constitutional history of England, Vol. 11, Chap. IX: Keir, Constitutional History of Modern Britain (7^th Edition), pp 115-16, 342; Thayer, Legal Control of the Press(1962), pp 8et. Seq].
3. Union of India v. Assn. for Democratic Reforms, (2002) 5 SCC 294.
4. Hamdard Dawakhana v/s Union Of India, AIR 1960 SC 554
5. Law Commission 2013. The news Media meets’; Rights, Responsibility and Regulation in the digital age (Law commission 128)
6. Bennett Coleman and Company Vs. Union of India, 1973 AIR 106, 1973 SCR (2)
7. Romesh Thapper Vs. State of Madras AIR 1950 SC 126
8. Prabha Dutt Vs. Union of India & Ors. AIR 1982 SC6

Questions

1. Case Analysis of Bennett Coleman v/s Union of India
2. Whether freedom of the press is an essential part of freedom of speech and Expression?
3. What does freedom of press allow us to do?
4. Whether freedom of speech and expression is mainly developed with the judicial process, brief it with the help of case laws?
5. What are the major issues raised in the case of Bennett Coleman and Company v/s Union of India?