Bennett Coleman & Co. v Union of India (Supreme Court, 1972) — the newsprint policy and freedom of the press

Freedom of the press is not named in the Constitution; it is implied in Article 19(1)(a). This case is the leading authority that a measure which directly restricts the pages or circulation of a newspaper restricts that freedom, whatever its ostensible subject, and that the Government may not decide which newspapers should grow.

The petitioners, publishers of daily newspapers, challenged the Import Policy for Newsprint for April 1972 to March 1973 and clauses 3 and 3-A of the Newsprint Control Order, 1962. The Order was made under section 3 of the Essential Commodities Act, 1955, which lets the Central Government regulate the production, supply and distribution of an essential commodity; paper including newsprint is defined as an essential commodity. Clause 3 provided that no consumer of newsprint should in any licensing period consume newsprint in excess of the quantity the Controller authorised. The 1972–73 policy fixed the number of pages a newspaper could publish, prevented the petitioners from using their quota to increase the number of pages, allowed page increases only to dailies operating below the ten-page level, and prevented the petitioners from using white printing paper. The petitioners contended that the clauses "affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article 19(1) (a) of the Constitution", were not reasonable restrictions under Article 19(2), and offended Article 14. The Bench was Sikri C.J., Ray, Jaganmohan Reddy, Mathew and Beg JJ.; A.N. Ray J. delivered the majority judgment.

1. Does the freedom of speech and expression include the freedom of the press, and does it extend to the volume of circulation and the number of pages?
2. Is the effect of a measure to be judged by its subject-matter, newsprint as an essential commodity, or by its direct effect on the freedom?
3. Do the restrictions on pages, circulation and the use of the quota violate Articles 19(1)(a) and 14?

The press and circulation. The Court gathered the earlier law. In Romesh Thappar and Brij Bhusan "every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press". In the Express Newspapers case Bhagwati J. said "that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication." In the Sakal Papers case, "This right extends not merely to the matter it is entitled to circulate but also to the volume of circulation", and the Newspaper (Price and Page) Act, 1956, under which the Government fixed the maximum number of pages according to the price charged, was struck down.

Direct effect, not subject-matter. The Government relied on the Express Newspapers and Hamdard Dawakhana cases to argue that the policy dealt with an essential commodity and only incidentally touched the press. The Court distinguished them: in Express Newspapers "the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of speech and expression", and in Hamdard Dawakhana the Act's true nature was the regulation of trade. Here the restrictions fell directly on the newspapers' pages and circulation.

The policy violates Articles 19(1)(a) and 14. "The restriction on the petitioners that they can use their quota to increase circulation but not the page number violates Article 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them." The policy permitted dailies with large circulation to increase circulation while dailies below ten pages could increase pages but not circulation, and it had reduced the quota for circulation growth: "counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in" pages and which in circulation. The Court directed: "The restrictions are to be removed. Newspapers have to be left free to determine their pages, their circulation and their new editions within their quota of that has been fixed fairly." The bar on using white printing paper also fell: the Additional Solicitor General's statement that newspapers could use any paper so long as they did not apply for newsprint "exposes grave errors", showing that there was no shortage of white printing paper and no justification for rationing newsprint.

The freedom of the press is part of Article 19(1)(a) and extends to the volume of circulation and the number of pages. A measure is tested by its direct and inevitable effect on the freedom, not by its subject-matter, so a newsprint policy that fixes pages, forbids using a quota for pages, and decides which papers may grow abridges the freedom and is void; it also violates Article 14 by treating unequals as equals. Rationing a scarce commodity is permissible; dictating how a newspaper uses its fair share is not.