Posted on: November 1, 2020 Posted by: Anagha Shelke Comments: 0
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Bennett Coleman & Co. Ltd. vs. Union of India

Citation:1973 AIR 106, 1973 SCR (2) 757

Bench: Sikri, S.M. (CJ), Ray, A.N., Reddy, P. Jaganmohan, Mathew, Kuttyil Kurien, Beg, M. Hameedullah.

INTRODUCTION

A petition was filed by Coleman & Co. Ltd. and others in the Supreme Court with respect to the Newsprint Policy/Order 1972-73 passed and declared by the Central government during Emergency but as an emanation of the similar order passed in 1962. The order was impugned because certain restrictions and regulations on newspapers affected the right to freedom of speech and expression.

FACTS

The petitioners in the case are conglomerates in the media industry engaged in the publication of newspaper. The petitioners, in essence, challenged three policies/orders which were promulgated by the Central government viz. Import Order 1955, as being restrictive on the import of newsprint; Newsprint Order 1962, that regulated the sale, acquisition, and use of newsprint; and Newsprint Policy of 1972-73, which directly regulated the size and circulation of newspapers.

The Newsprint Policy of 1972-73 imposed further restrictions based on the following four characteristics: first, establishments owning more than two newspapers were prohibited from starting new newspaper if at least one of which is daily; second, the page limit for newspaper was set up to ten; third, for newspapers that are already under a page limit of ten, the increase in number of pages should not exceed 20%; lastly, different newspapers of the same establishment or between different editions of the same paper were restricted from interchanging the newsprint. Ergo, the petitioners were not able to make modifications to their designed curriculum under these policy restrictions. In view of this, it was challenged for violation of Article 19(1)(a) of the Indian Constitution.

Fundamental rights are available to only natural persons. The respondents argued over this that the petitions are not maintainable as the petitioner is a company and not a natural person. The News Print Policy of 1972-73 was on the basis of the 1962 order, which was promulgated before Emergency. The policy restrictions regulated the commercial activities of newspapers in order to impede monopolies. Further, it was claimed that the issue of whether newsprint import must be increased was an issue of policy/order that could not be challenged on any grounds except “mala fide.”

ISSUES

  1. Whether the petitioners being companies could invoke fundamental rights?
  2. Whether Art. 358 of the Constitution was a bar to any challenge by the petitioners on violations of fundamental rights?
  3. Whether the restriction on newsprint import under the 1955 Order was violative of Art. 19(1) (a) of the Constitution?
  4. Whether the newsprint Policy fell within clause 5(1) of the Import, Control Order 1955 and was valid?
  5. Whether clauses 3 and 3A of clause 3 of the 1962 Newsprint Order were violative of Arts. 19(1) (a) and 14 of the Constitution?
  6. Whether remarks V, VII(a), VII(c), VIII, and X of the Newsprint Policy for 1972-73 were violative of Arts. 19(1) (a) and 14 of the Constitution because of the aforementioned objectionable features?

JUDGEMENT

Ray held the opinion of the court. At the outset, the Supreme Court observed that the petitions were maintainable. The fact that the petitioners were companies placed no obstruction on the award relief for violation of rights of the editorial staff and shareholders of the company, who also were the petitioners. Additionally, the bar under Article 358 did not apply to any legal provisions passed before the proclamation of emergency, Therefore, the News Imprint policy was not an exception and there is no bar because the 1962 order was passed before emergency.

Substantively, the court observed that freedom of press is a crucial element of Article 19(1)(a), even though there is no explicit mention of alike freedoms, as it is irrelevant. The court also pointed out that the dearth of news imprints could be confronted by quota limits. Direct intervention in the page limit and alike regulations was unjustified. The page limit perhaps meant either reduction in advertisement, consequentially affecting the economic sustainability of the company or hampering the news content. This would directly limit freedom of expression. It was also observed that freedom of press has both qualitative and quantitative aspects, the regulations on quantitative aspect constituted direct restrictions on the fundamental right of free speech and expression. The Court held that the Newsprint Policy 1972-23 was unconstitutional. The News Imprint Order and Import Control Order were also struck down on the grounds of being ultra vires to the restrictions of the foregoing right.

Beg J delivered a concurring opinion. It was ascertained by him that the restrictions and regulations inflicted from the Newsprint Policy of 1972-73 were beyond the ambit of the Import Control Order. The relevant enactments and orders seem to authorize only the grant of licences for particular quotas. Since the government action in the form of promulgation of orders had no legal basis primarily, it was not even necessary to consider whether they were reasonable restrictions warranted by either Art. 19 (2) or Art. 19 (6) of the Constitution.

Mattew J held a dissenting opinion. He highlighted that Article 19 (2) enumerates the type of restrictions that might be imposed by law. However, regulations do not directly amount to abridgment of the right. Therefore, restriction on the number of pages does not mean an abridgment of freedom of expression and also observed that there was no direct regulation of content. The policy broadened rather than abridged the freedom of speech, as the monopoly was prevented by only a few newspapers and enhanced the efficiency of newsprint utilization. The pith and substance test, despite not strictly suitable, might serve a useful purpose in deciding whether the impugned policy which interfere with the freedom of speech is fundamentally regulatory in character. While dissenting with the majority judgement, he held that the policy was not unconstitutional.

CONCLUSION

During the emergency, by virtue of Article 358, the fundamental rights could be taken away merely by the authority of the law passed at the time of the emergency and not on the ones which were passed previously. Exemplification of the same is AFSPA (Armed Forces Special Powers Act, 1958), an act passed during the emergency, hence it could never be challenged in court. A similar observation to the foregoing judgement was made in the Bank Nationalisation case that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. The court said, “That individual right is not lost by reason of the fact that he is a shareholder of the company”. This decision also acknowledges that freedom of the press is unrestricted to freedom from direct regulation of content. For freedom of press to be effective, redundant intervention should be avoided.

Anuradha Bhasin vs. Union of India

Case Number: Writ Petition (Civil) No. 1031 of 2019, Writ Petition (Civil) No. 1164 of 2019

Bench: N.V. Ramana, V. Ramasubramanian

INTRODUCTION

The state of Jammu and Kashmir under Article 365 enjoyed special status along with its own Constitution. The Indian Government, on 5thAugust 2019, issued Constitution (Application to Jammu and Kashmir) Order, 2019 which scrapped Jammu and Kashmir’s special status and made it fully adhere to the Indian Constitution. Following the series of events, under the disguise of the recently passed Constitutional Order, the Indian government started enforcing restrictions on online correspondence and freedom of movement. Primarily two petitions were filed by Ms. Anuradha Bhasin, the editor of the Kashmir Times, Srinagar Edition, and Mr. Ghulam Nabi Azad, a Member of Parliament, with respect to the turn of events.

FACTS

The genesis of the issue started when the Government of India imposed a suspension on the communication and internet services along with restrictive measures imposed on movement and public assembly under Section 144 of CrPC, in certain areas on Jammu and Kashmir (hereafter J&K) on 4thAugust, 2019. Home department of the government advised tourists and Amarnath Yatra pilgrims to leave the J&K area in India. The movement restrictions and internet shutoff (hereinafter restrictions) put constraints on journalist’s overall abilities to travel and publish. Thereby, such restrictions were challenged in the court as being violative of Article 19 of the Indian Constitution i.e. freedom of speech and expression.

Petitioner Anuradha Bhasin stressed at the internet vitality for the modern press to function smoothly. Due to the restrictions, she had been unable to publish her newspaper since 6th August 2019. Further, the restrictions lasted over 100 days, which supposedly were temporary in nature. Furthermore, the restrictions censored any discussions over the Constitutional Amendment scrapping J&K’s special status by the persons living there. It was sought that the State failed to prove the proportionality and necessity of the restrictions.

The second petitioner Ghulam Nabi Azad claimed that State restrictions were merely based on conjectures and not on objective rationale. It was also purported that the restrictive actions were in an aggravated form, the state should adopt the least restrictive measures in order to strike a balance between the security of the state and liberty of the citizens within the scope of fundamental rights.

The Attorney General and Solicitor General of India defended the respondents, in this case, the Government of India. While the arguments advanced, they restored to the history of cross border terrorism and internal militancy that long-time tormented J&K. The attorney general recalled and compared similar steps taken by the officials in 2016, when a terrorist was killed. While, the solicitor general specifically pointed out that the purpose of the orders was to protect the security of the country and its citizens, which is the first and foremost duty of the state. He submitted that the internet was never cramped in these regions. He drew a parallel between the social media usage for prospective provocative messages and impairment of state security. In his view, there was a threat of the “dark web” (network where individuals can purchase weapons and illegal substances) flourishing in these times.

ISSUES

  1. Whether the Government can claim exemption from producing all of the restriction orders?
  2. Whether the freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights under Part III of the Indian Constitution?
  3. Whether the Government’s action of prohibiting internet access is valid?
  4. Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
  5. Whether the freedom of the press of the petitioner was violated due to the restrictions?

JUDGEMENT

  1. The Court held that the State has to produce the orders imposing the restrictions as the Court experiences extreme troubles in determining the legality of the restrictions in the absence of such orders. It was previously held in Ram Jethmalani vs. UOI[i] that a state must disclose any such information in order to satisfy the right to remedy under Article 32 of the Indian Constitution. Further, the court while relying on various landmark judgements reiterated that under the Indian Constitution, Right to Information is a crucial aspect of Right to freedom of speech and expression under Article 19. Under fundamental rights, the state is mandated to act responsibly while safeguarding them. The Court added that “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” In the current case, the argument of the state that the order could not be released in its entirety because of unspecified difficulties was not taken to be a valid justification.
  2. Foremost, the Court echoed that free speech and expression under Article 19 of the Indian Constitution is extended to the internet. The Court stated that in Indian Express vs. UOI[ii], it held that freedom of print media is protected under freedom of expression. However, the Court did not go into the facet of discussing the right to access the internet as a fundamental right as neither of the parties raised this issue. By reconsidering its jurisprudence with respect to the application of Article 19(2), the Court concluded that restrictions on freedom of speech and expression could impose complete restrictions. It was noted that modern terrorists actively used the internet to disseminate false messages and propaganda, recruit others for their motives, etc. The court expressed concern over maintaining a fair balance between national security and liberty. Also in the view, proportionality is the principal means to achieve judicial balance while resolving issues of restrictions on fundamental rights, the court framed its understanding of the test of proportionality
  3. The court outrightly rejected the State’s rationale for a complete ban on the internet just because it failed to bear the technology to selectively block internet services. The Court contended that it had to contemplate both substantive procedural and elements to ascertain the Constitutional legality of the internet shutdown. The Court emphasised mainly upon the provisions of the Telegraph Act, 1885. Section 5 (2) of the Act permits the suspension of internet services only in suitable situations of public emergency or in the interest of public safety. Furthermore, the court held that Rule 2 (2) of the Suspension Rules, 2017 presupposes every such order to be a ‘rational order’ which must signify that a complete suspension of telecom is required. Since the Court was unable to view all orders, it could not comprehend which of them were not anymore in effect and could not evaluate the public order situation, it “moulded the relief in the operative portion.” Hence, the action of the government in prohibiting internet access was held to be invalid.
  4. The Court observed that Section 144 is one of the means that authorizes the State to preserve public peace and it could be invoked in emergency cases of public tranquility or apprehended danger. Additionally, The Court noted that the orders passed under Section 144 have immediate impact upon the fundamental rights of the general public and using this sort of power casually would result in grave illegality. Thereby, it is essential for the State to generate substantive facts, compelling the passing of these orders to judicial review. Furthermore, the court highlighted the use of the least intrusive method and the test of proportionality. Therefore, the imposition of restriction under Section 144 of CrPC was held to be unjustified.
  5. The Court held that freedom of press has been acknowledged in India long back, along with reasonable restrictions. The Court construed the petitioner to maintain that the imposed restrictions did not inevitably have a direct, but more of an indirect effect on the freedom of expression. Besides, whenever the petitioner resumed publication the Court merely advised the State governments to act responsibly and respect the freedom of press. Thus, it was maintained that the freedom of press of the petitioner was not violated due to the restriction imposed.

CONCLUSION

The judgment established a binding precedent unless overruled by a larger bench as the decision was given by a three judge bench of the Supreme Court. Freedom to practice any profession online was safeguarded by India’s Constitution. It is preconditional for the government to prove the necessity and impose a temporal limit. Limitations under Section 144 of the Code of Criminal Procedure cannot be used to suppress legitimate expression and movement unless exceptional cases and are subject to judicial review. It is the citizen’s right to know about the government actions and the state should essentially maintain a balance between the citizen’s liberties and national security.


[i] (2011) 8 SCC 1

[ii] (1985) 1 SCC 641

Anagha Shelke
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Second year law student at Government Law College, Mumbai.

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