Cochin University Law Review Vol. XV, 1991 p. 237-255
Freedom of Press and Right to Circulation
D. S. N. SOMAYAYULU*
Constitution of India makes no specific mention of freedom
of press under Article 19 (1) (a). Dr. Ambedkar made it clear
that freedom of press is implicit in the right to freedom of
speech and expression guaranteed under Article 19 (1) (a)'. He
further said that press and individual stand on the same footing
with regard to the exercise of the fundamental rights. Press cannot claim higher rights than which are given to an individual.2
In contrast, the First Amendment of the American Constitution prohibits the Congress from making any law abridging
the freedom of speech and the press. The American Supreme
Court by judicial interpretation held that the First. Amendment
has operated as a limitation on the state action infringing
freedom of speech and the press. 3 The protection given by the
First Amendment was expanded by the courts as to apply to
an action by any branch or agency of the Federal Government,4 as well as by the state by its incorporation through the
Fourteenth Amendments
Attempts have been made all over the world by governments to control or gag the press for publishing articles which
Reader, University College of Law, Andhra University, Visakhapatnam.
Constituent Assembly Debates, Vol. 8, pp. 712 715 and 780. He
made the observation in reply to some members who insisted that
freedom of press should be clearly mentioned in the Constitution
itself, rather than to be implied.
Ibid.
Lee Lovinger, "Free Speech, Fairness and Fiduciary Duty in Broadcasting", 34 Law & Contemporary Problems 278 (1969).
Tucker v. Texas, 326 U.S. 517 (1946).
5. Palko v. Connecticut, 302 U.S. 319 (1938).
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are irritant or critical of its action or expose its weaknesses.
The government may pressurize the press by making laws
imposing restrictions on the price to be charged, or on the
number of pages to be published, or regulate the area or space
allotted to advertisements or by withholding government advertisements. All these restrictions in one way or the other
have an effect on the circulation of the newspaper.
Content of the Freedom
Freedom of press 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 public interest by publishing facts and opinions without which a democratic electorate can make responsible judgements. Freedom of press is
the heart of social and political intercourse and it is the primary duty of the courts to uphold it and invalidate all laws
or administrative actions which interfere with it contrary to
the constitutional mandate.6
The freedom of expression has four broad social purposes
to serve:7
It helps an individual to attain self fulfilment.
It assists in the discovery of truth.
It strengthens the capacity of an individual in participating in decision making.
It provides a mechanism by which it is possible to
establish a reasonable balance between stability and
social change.
Freedom of press came to be regarded as an important
right in all liberal or democratic countries having a written
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,
A.I.R. 1986 S.C. 515.
Ibid.
C.U.L.R.
D. S. N. Somayayulu
239
constitution. This status was a result of considerable sacrifice
and sufferings made over a long period of time. While moving
the "Bill of Rights" in the American Congress in 1789, James
Madison declared that 9 "the right of freedom of speech is
secured, the liberty of press is expressly declared to be beyond
the reach of the congress".
Though in England, there is no written constitution the
freedom of press is secured though well established constitutional conventions and judicial pronouncements. The framers
of the Indian Constitution were very much influenced by the
American Bill of Rights, while drafting the chapter on Fundamental Rights in the Indian Constitution. Pandit Jawaharlal
Nehru, the first Prime Minister of the independent India, stressed the importance of this freedom in the constituent assembly.
He said, 9 while moving a resolution on aims and the objects
of the Constitution, that "the Constitntion should guarantee and
secure to all the people of India among others freedom of
thought and expression". Further, he said that if he was asked
to choose between a free press and a controlled press he would
choose the former. He remarked:'°
"I would rather have completely free press with all the
dangers involved in the wrong use of that freedom than a
supressed or regulated press".
Freedom of speech and liberty of press have been given
a prominent place in the basic documents of the United Nations
and certain other international bodies. The Universal Declaration of Human Rights 1948, 11 the International Covenant on
1 Annals of Congress 141 (1789-96).
Constituent Assembly Debates, Vol. 1, p. 59.
D. R. Manekar, The Press under Pressure, p. 25.
Article 19 reads: "Every one has the right to freedom of opinion
and expression, this right includes freedom to hold opinions without interference and seek, receive and impart information and ideas
through any medium and regardless of frontiers".
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[1991]
Civil and Political Rights 1966 12 and the European Convention on Human Rights 13 recognise the importance of the freedom of opinion and expression. All of them, declare that every
one should have the right to freedom of opinion and expression
without any interference. This freedom carries with it right
to receive and communicate ideas orally or written through
any media. However, the respective states can impose reasonable restrictions in the interest of national security, public
order, public health or morals, and protection of reputation of
others.
12. Article 19 of the Convention states that:
Every one shall have the right to hold opinions without interference.
Everyone shall have the freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas
of all kinds regardless of frontiers either orally, in writing or in
print in the form of art or through any other medium of his
choice.
3. The exercise of these rights provided for in paragraph 2 of this
article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only
be such as are provided by law and are necessary,
for respect of the rights or reputation of others.
for protection of national security or of public orders, or of
public health or morals.
13. Article 10 states:
Everyone has the right to freedom of expression. This right
shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public
authority and regardless of fronters. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national
security, territorial, integrety, public safety, for the prevention
of disorder or crime, for the protection of health or morals,
for the protection of reputation or rights of others, for preventing the disclosure of information received in confidence or
for maintaining the authority and impartiality of the judiciary.
D. S. N. Somayayulu
241
Freedom of expression in a broad sense carries with it
several specific rights all linked together in a "continuum" made
increasingly perceptible by modern technological advance. In a
classic sense freedom of opinion includes "the right to say
what one thinks and not to be harassed for ones opinion".
Freedom of expression in a limited sense includes the right
to seek receive and impart information and ideas regardless
of frontiers, either orally, in writting or in print in the form
of art, or through any other media of ones choice. This freedom of expression when put to use through mass media acquires a new dimention and becomes freedom of information. 14
Free expression is indispensable and it is a means to discover
and spread political truth. The real danger to expression is
inert people." Public information helps citizens to know what
is taking place."
Right to Circulation
Freedom of press consists of a number of rights and one
such right is freedom of publication. Publication means dissemination and circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed without circulation the publication would be of little value." The
newspapers should have the freedom to publish any number of
pages or to circulate it to any number of persons." Attempts
were made to regulate the dissemination and circulation of
newspapers by the government through legislative or executive
measures. Ramesh Thappar, l9 Virendra, 20 Sakai Papers,21
Frank C. Newman & Karel Vasak, "Civil and Political Rights" in
Karl Vasak (Ed.) International Dimensions of Human Rights., Vol.
1, pp. 155-156.
Brandies, J., in Whitney v. California, 274 U.S. 357 (1927).
Murphy, J., in Thornhill v. Alabama, 310 U.S. 88 (1940).
Ramesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124, p. 127.
Bennett Coleman & Co. Ltd. v. Union of India,
1973 S.C.
106, p. 118.
Ramesh Thappar v. State of Madras, A.I.R. 1950 S.C. 124.
Virendra v. State of Punjab, A.I.R. 1951 S.C. 896.
Sakai Papers (P) Ltd. v. Union of India, A.I.R. 1962 S.C. 305.
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Bennett Coleman22 and Indian Express" all cases bear testi-
mony to these attempts.
Prohibition on Circulation
In Ramesh Thappar 24 the question was the scope of the
freedom of circulation under Article 19 (1) (a) of the Constitution. The !government of Madras banned the entry and
circulation of an english weekly, 'Cross roads', published
from Bombay into the city of Madras. The Madras Maintenance of Public Order Act, 1949, permitted the State to prohibit the entry into or circulation of any document or classes of
document within the state or any part of it. 25 The petitioner
contended that this provision contravened Article 19 (1) (a)
of the Constitution and was hence void. 26 The state argued
that the expression 'public safety' in Section 9 (1-A) relates
to law and order which in turn has a relation to "security of
province". In other words, it amounted to imposition of reasonable restriction in the interest of security of state under Article 19 (2). 27However, Section 9 (1-A) specifically refers to
`public safety' and the 'maintenance of public order' as the
purpose for which any action may be taken. The question before the Court, was whether to read public order as a wider
concept inclusive of public safety or treat it as distinct and
exclusive. If public safety and public order were treated as distinct grounds then the Madras legislature was incompetent to
legislate a law in the interest of public safety.28
The Supreme Court held that the expression "public
safety" ordinarily means security of the public or freedom from
danger. If understood in that sense, then anything which affects
Bennett Coleman & Co. Ltd. v. Union of India, A.I.R. 1973 S.C.
106.
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,
A.I.R. 1986 S.C. 515.
A.I.R. 1950 S.C. 124.
The Madras Maintenance of Public Order Act 1949, Section 9 (1-A).
A.I.R. 1950 S.C. 124.
28.
Ibid.
Ibid.
C.U.L.R.
D. S.
Somayayulu
243
public health may be taken to be covered by the expression public safety.29 The restraint on speech would not be justified in
the interest of public order or public safety as they are too
wide to be covered by the narrower expression." Patanjali
Sastry, J. emphasized that unless a law restricting freedom of
speech and expression is solely directed against undermining the
security of state or overthrow of it, such a law will not be covered by Article 19 (2), although the restrictions may be in the
interest of public order. 31 Hence, it means that Section 9 (1-A)
which authorised the imposition of restrictions for wider purpose of securing 'public safety', or maintenance of public order
fell outside the authorised restrictions under Article 19 (2) and
therefore void and unconstitutional. 32 This means that the expression public order and public safety must give way to security of state. 33 An offence which endangers security of state
can be restricted but not an offence covering public order. 34
The Supreme Court did not go into the nature of the material
appearing in the weekly. 35 The decision merely stated that the
government was not authorised to prevent entry of matter in
the interest of public safety or in the interest of public order.
The decision positively laid down that the State can impose restrictions on a newspaper only when it is made with a view to
combat and prevent activities which may undermine or overthrow it.36
In Virendra v. State of Punjab, 37 the Constitutional validity
of Section 3 of the Punjab Special Powers (press) Act 1956
was raised. Section 3 (1) authorised the government to prohibit the entry of a newspaper, leaflet or any publication if it
Ibid.
Id., p. 128.
Id., p. 129.
Ibid.
P. K. Tripathi, "Indias Experiment in Freedom of Speech and First
Amendment and thereafter" 17 S.C.J. 106 (1955).
Id., p. 109.
Id., p. 110.
Id., p. 111.
A.I.R. 1957 S.C. 896.
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contains matters likely to affect or prejudice maintenance of
communal harmony or public order. The virtual effect of Section 3 was that it completely prohibited the entry or circulation
of papers published in New Delhi into the whole of Punjab.
Since Section 3 did not place any time limit for the operation
of any order under it or provide for representation against it,
the section was held to be unreasonable and unconstitutional. 3 8
Price and Page Control
In Sakai Papers (P) Ltd. v. Union of India, 39 the Newspapers (Price and Page) Act 1956, and the Daily Newspaper
(Price and Page) order 1960 prescribed the number of pages
of a newspaper and the price to be charged. The order also
prescribed the number of supplement to be published, the area
and the size of the advertisement matter in relation to other
matters contained in a newspaper. 4 ° In defence of these measures, the government contended that the intention of the order
was to regulate the price charged for a newspaper in relation
to their pages." It was also said that the order was a necessary sequal to the Press Commissions recommendation that unfair practices and monopolistic tendencies should be curbed. 47
The petitioners contended that the impugned order resulted in compelling them either to raise the price of the paper
if they want to maintain the present page level, or to cut down
the number of pages to maintain the existing price. 43Either
way this would result in reducing the circulation of the paper.
If the price of the paper was raised, it would become unattractive to a certain class of readers. Reduction in page level leads
in turn to reduction in the area of news published. This again
would make the paper unattractive to the readers. In otherwords the Act and the order was designed to curtail the freeId., p. 903.
A.I.R. 1962 S.C. 305.
Ibid.
Id., p. 307.
Id., p. 307, 308.
Id., p. 307.
C.U.L.R.
S. N. Somayayulu
245
dom of press and as such violated freedom of speech and expression guaranteed under Article 19 (1) (a)." They contended that the order interfered with their right to disseminates
news and views.
The court accepting the arguments of the petitioner held
that the Act and the Order clearly violated freedom of speech
and expression guaranteed under Article 19 (1) (a). The Order
if allowed to operate would result in curtailing the freedom of
the press. As freedom of press was accepted to be part of freedom of speech and expression under Article 19 (1) (a), reasonable restrictions could only be imposed.45
Freedom of speech and expression includes the right to
propagate one's ideas. Right to propagation of ideas carries with
it the right to publish, to dissetrinate and circulate them to any
class of readers, subject ofcourse to the imposition of reasonable restrictions under Article 19 (2). The fixation of number
of pages which a newspaper is• entitled to publish may bring
down the volume of circulation of some newspapers by making
the price unattractive. Again this would indirectly compel newspapers to restrict the dissemination of news and views and
thereby affect the rights guaranteed under Article 19 (1) (a).
Newsprint Control
The Supreme Court was again asked to examine the effect
of newsprint policy of the government on the circulation of
newspaper in Bennett Coleman and Co. Ltd. v. Union of India. 46
As there was a shortage of indigenous newsprint, its import was
regulated by the Import Control Order 1955, issued under Section 3 and 4A of the Import and Exports Control Act 1947.
The Government passed the Newsprint Control Order 1962 in
exercise of its powers under Section 3 of the Essential Commodities Act 1955. The Object of the Newsprint Control Order
was stated to be to make an equitable distribution of it at a
Ibid.
Id., p. 310.
A.I.R. 1973 S.C. 106.
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[1991]
fair price. Clause 3 of the Newsprint control order placed restrictions on acquisition, sale and consumption of Newsprint.
Clause 3 (3) declared that no consumer of newsprint shall in
any licensing period, consume or use newsprint in excess of the
quantity authorised by the controller from time to time. Clause
3 (3A) further stated that no consumer of the newsprint, other
than a publisher of text books of national interest should use
any kind of paper other than newsprint except under a written
permission granted by the Controller. The Central Government
laid down its newsprint policy for the year 1972-73. This policy
placed certain restrictions on the newspapers in utilisation of
newsprint. They were:
No newspaper or new edition can be started by a common ownership unit even within its authorised quota of
newsprint.
Maximum number of pages is fixed at 10. No adjustment is allowed between circulation and the pages, so
as to increase the pages.
No interchangeability is permitted, between different
papers of common ownership units in different edition
of the same paper.
20% increase in page level upto a maximum of 10
pages has been given to papers which are having a circulation of less than 1,00,000/- and 3% increase in case
of papers having circulation above 1,00,000/-.
The petitioners, raised the question, whether the newsprint
control policy was a newsprint control or newspaper contro1.47
According to Mr. Palkhivala who appeared for the petitioners,
the measure was the "Newspaper control with a degree of subtlety and sophistication". Rationing of newsprint is newsprint
control. When once the quota is fixed it results in post quota
restrictions or newspaper control.
47.
Id., p. 117.
D. S. N. Somayayulu
C.11.L.R.
247
In the instant case, the newspapers control was achieved
by the measures adopted in relation to common ownership units.
The common ownership units were:
prevented from bringing out newspapers or new editions
of their dailies.
not permitted to have interchangeability of quota within their unit.
The State argued that the subject matter of the import
policy was rationing of imported commodity and equitable distribution of newsprint. The restrictions in fixing the page level
and circulation were necessary to see that the imported newsprint was properly utilised for the purpose for which it was
imported.48
Further, the state contended that the rationing and distribution of quota of newsprint and regulation of its supply was
not a direct infringement of Article 19 (1) (a). 49 The decisions of the United States Supreme Court in Red Lion Broadcasting Co. 50 and O'Brien, 5i were cited in the support. In Red
Lions Case the court held, S2 that "neither regulation nor direction with regard to medium of expression encroaches on the
First Amendment right of the American Constitution. Regulatory
statutes which do not control the content of speech but incidently limit the unfettered exercise are not to be regarded as
a type of law which the First Amendment of the American
Constitution forbade the Congress of the United States to
enact. In O'Brien's case the court held 53 that any incidental
limitation or incidental restriction was permissible if the same
was essential to the furtherance of important governmental interest in regulating speech and freedom.
Ibid.
Id., p. 119.
395 U.S. 367 (1969).
391 U.S. 367 (1968).
395 U.S. 367 (1969).
391 U.S. 367 (1968).
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The Court held, that the policy of the government to limit
all papers to 10 page limit was arbitrary. It amounted to treating unequals as equals and discrimination against those who by
virtue of their efficiency, standard and service and because of
their all India stature acquired a higher page leve1. 54 The newsprint policy failed to make a distinction between big english
dailies having all India circulation and small dailies having regional circulation with regard to the allocation of newsprint. 55
The Government's policy to encourage small dailies cannot be
allowed to strangulate the freedom of speech and expression of
the big dailies. 5 6
The newspaper should be left free to decide how they
should adjust their newsprint. For the purpose of allotment of
newsprint number of pages and volume of circulation of a newspaper may be relevant, but thereafter the newspaper should be
left free to decide their page level, volume of circulation and
new editions within their quota alloted fairly. Freedom of press
carries with it the right to achieve any volume of circulation.
The growth in circulation does not mean that there should not
be growth in pages. The restrictions on newspapers that they
cannot use the quota of newsprint to increase circulation would
therefore be violative of the Constitution.
Levy of Duties
The publishers of the newspapers are required to pay customs duty as per the provisions of the Customs Act 1962, read
with the provisions of Customs Tariff Act 1975. Further, the
Finance Act of 1981, imposed an auxiliary duty of 30% advalorem in addition to the customs duty on the consumers of newsprint. The newspapers are classified as, small, medium, and big
newspapers for the purpose of the levy. The levy of these duties
was challenged in Indian Express case. 57 While the petitions
Bennett Coleman & Co. v. Union of India, A.1.R. 1973 S.C. 106.
Ibid.
Ibid.
Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,
A.I.R. 1986 S.C. 515 at p. 520. The newspapers are classified into
(f. n. ‘ontd.)
C.U.L.R.
D. S. N.
Somayayulu
249
were pending in the Court, the Customs Tariff Act 1975 was
amended levying 40 per cent advalorem plus Rs. 1000 per
metric ton as customs duty on newsprint, and the auxiliary duty
payable on all goods subject to customs duty was increased to
50% advalorem. However, in view of the notifications issued
under the Customs Act 1962, duty at a flat rate of Rs. 550/per metric ton and an auxiliary duty of Rs. 275/- per metric
ton were now levied. The petitioners who were companies engaged in the business of editing, prinfilng and publishing newspapers and periodicals contended that the levy of customs duty
and auxiliary duties had the direct effect of crippling their
freedom of speech and expression guaranteed under the Constitution. According to the petitioners, the imposition of levy
in turn lead to the increase in the price of newspapers and the
inevitable consequence would be reduction in circulation.
On the other hand, the government contended." that the
levy of customs duty on newsprint was not strictly a levy on
newsprint as such, though customs duties were levied with reference to goods, the taxable event was the import of goods
within the customs barrier and hence there could be no direct
effect on the freedom of speech and expression by virtue of the
levy of customs duty on newsprint. Rejecting this contention,
the Court observed:59
"It cannot be denied that the levy of customs duty on
newsprint used in the production of newspapers is a restriction on the activity of publishing a newspaper and the
levy of customs duties had a direct effect on that activity.
small, medium, and big. Small newspapers are those who have circulation of less than 15,000. They are supplied newsprint without
import duty. Medium newspapers are those who have a circulation
between 15,000 and 50,000. For them the price of newsprint includes price plus 5% advalorem duty (Rs. 275 per metric ton).
Big news papers are those who have a circulation of over 50,000.
For them price of newsprint includes levy of 15% advalorem duty
(Rs. 825 per metric ton).
Id., p. 549.
Ibid.
Cochin University Law Review
250
[1991]
There exists no analogy between Article 289 (1) and Article 19 (1) (a) and (2) of the Constitution".
The Court further observed, that though the petitioners had
succeeded in showing a fall in circulating they had not placed
before the court the necessary data to establish that the fall in
circulation may be due to a variety of factors namely, general
rise in cost of living, and management of a paper, change in
editorial policy, the absence of certain feature writers, etc. 6°
Similarly the government also made no effort to show the effect
of the impact of the levy on the newspaper industry as a whole.
It is difficult to conclude on either way, that the effect of levy
was burdensome so as to infringe the freedom of press or that
is not so, on the basis of the materials placed before the court. 61
The court directed the central government to review within six
months the entire question of levy of customs duty or auxillary
duty payable by the petitioners with effect from March 1, 1981.
The petitioners were directed to make available to the government all information necessary to decide the question. 62 Pending redetermination of the levy, the government was asked to
recover only Rs. 550/- per metric ton as customs duty and
auxillary duty. The concessions made available to medium and
small newspapers were not disturbed.63
The Court held that the classification of newspapers into
small, medium and big for purpose of levying customs duty was
not violative of Article 14. The distinction in the levy of duty
was intended to help the small and medium newspapers to bring
down their cost of production. These papers do not command
large advertisement revenue. Their area of circulation is limited
and majority of them are in Indian languages catering to rural
section of the people. There is nothing wrong in the said classification.
Id., p. 551.
Id., p. 552.
Id., p. 555.
Ibid.
C.U.L.R.
D. S. N. Somayayulu
251
Control on Advertisements
Advertisements are not only a source of revenue but also
one of the factors for the circulation of newspapers. The advertisement revenue of a newspaper is proportionate to its circulation. Thus higher the circulation of a newspaper the larger
would be its advertisement revenue. No businessmen will give
advertisements to further his business prospects in papers having no circulation or of less circulation.
The right to publish commercial advertisements was held
to be not part of freedom of speech and expression in Harndard
Dawakhana v. Union of India. 64 In this case constitutionality
of the Drugs and Magic Remedies (Objectionable advertisement) Act, 1954 in relation to Article 19 (1) (a) and 19 (1)
(g) was considered. The Act in question was intended to prevent self medication and to prohibit advertisement suggesting
remedies for all kinds of diseases and other matters conLected
therewith. The Court held:
"An advertisement is no doubt a form of speech and it is
so only when it is used for propagation of ideas, social,
political or economic or furtherance of literature or human
thought".
The Court quoted with approval the American Supreme
Court decision in Lewis J. Valentine v. F. J. Chrestenseno
where it was held that:
"It cannot be said that the right to publish and distribute
commercial advertisements advertising individual's personal
business as a part of freedom of speech guaranteed by the
Constitution. Further, the constitutional right of free
speech is not infringed by prohibiting the distribution in
city streets of hand bills bearing on one side a protest
against action taken by public officials and on the other
advertising matter".
A.I.R. 1960 S.C. 552.
86 Law. Ed. 1262 (1941).
Cochin. University Law Review 252
[1991]
The constitutional validity of restrictions on advertisements
was again considered in Sakai Papers. 66 In this case the plea of
the state that the object of Section 3 (1) of the Newspaper
(Price and Page) Act 1956 in regulating the space for advertisement was to prevent unfair competition in trade was turned
down. It was held that the direct and immediate effect of the
Newspaper (Price and Page) Act 1956 and the Daily Newspaper (Price and Page) order, was to curtail the freedom of
newspapers guaranteed by Article 19 (1) (a). Similarly the
plea of the state that newspapers instead of raising the prices
could reduce their number of pages was rejected. It was also held
that the freedom of newspaper to publish any number of pages
or to circulate to any number of persons was an integral part
of freedom of speech and expression.67
In Bennett Coleman and Co. v. Union of India, 68 the
Court held that the policy of the government asking all papers
to limit to 10 pages was arbitrary. Such a policy may lead to
treatment of unequals as equals. It may discriminate against
those who by virtue of their efficiency standard and service and
because of their All India Stature acquired higher page level.
The main source of income for newspapers is from advertisements. The loss of revenue because of the cut in page level is
said to be over several lakhs of rupees.... The newspapers
have a built in mechanism. Advertisements are not only the
source of revenue but also one of the factors for circulation.
The ceiling of pages affects the economic viability of the
newspaper and also restricts the freedom of expression. Ceiling
of pages not only entails reduction of circulation and denudes
the area of coverage of news and views but also results in reduction of space alloted for advertisement. 69 Fall in advertisements makes the paper economically unviable.70
A.I.R. 1962 S.C. 306.
Id., p. 314.
A.I.R. 1973 S.C. 106.
Ibid.
Id., p. 126.
C.U.L.R.
D. S. N. Somayayulu
253
The Constitutional validity of Andhra Pradesh Government
order date 10-8-1979, directing all government departments,
public sector undertakings and governments to release all their
advertisements through Director, Information and Public Relations was raised in Ushadaya Publications (P) Ltd. v. Government of Andhra Pradesh. 7 ' In pursuance to the government
order, the Department of Information and Public Relations adopted guidelines to be followed for the purpose of allotment of
advertisements to the newspapers. It was stated that advertisements were to be released so as to ensure effective and widest
possible publicity. Political affiliations were not be considered in
placing Government advertisements. Advertisements were not to
be given to newspapers or periodicals adopting any undesirable
tones. 7?
The High Court held that the government had got the
right to give its advertisements to such papers as it pleases and
it was not open to the petitioners to contend that, the Government by denying the Government advertisements to the paper,
the freedom of press of the newspaper was violated. It further
added, that it cannot be denied that while giving advertisements
to various newspapers the government must do so without exercising any discrimination in favour of or against any particular
paper. The court quoted with approval the decision of the
Supreme Court in Ramona Dayaram Shetty v. International
Airport Authority of India," wherein, it was observed, "whatever its activity, the Government is still the government and will
A.I.R. 1981 A.P. 109 (F.B.).
Id., p. 112. The following were treated as undesirable.
(i) Antinational; (ii) communal; (iii) rabid, abusive; (iv) provoking
tensions between different sections of the society; (v) distorting
news for mischievous purpose; (vi) character assassination, black
mailing and attacks on individuals or mud-slinging without proper
and truthful evidence and intimidation; (vii) fomenting group rivalries and quarrels and thereby indulging in mischievous gossip mongering and sensationalism; and (viii) abusive and slanderous attack
on Government or its functionaries.
73. A.I.R. 1979 S.C. 1628.
254
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[1991]
be subject to restraints, inherent in its position in a democratic society. A democratic government cannot lay down arbitrary
and capracious standards for the choice of persons with whom
alone it will deal".
The court upheld the power of the Government to withhold the advertisements to newspapers or periodicals adopting
tones which were antinational or communal or provoking tensions between different sections of the society, or indulging in
character assassination, black-mailing and attacks on individuals
or mud slinging without proper and truthful evidence and intimidation, of its functionaries. The government cannot be expected to give advertisements to newspapers which make abusive or slanderous attacks on it.
However, the Court struck down the conditions in the
guidelines namely "Rabid or abusive or distorting news for
mischievous purpose or fomenting group rivalries and quarrels
and thereby indulging in mischievous gossip mongering and
sensationalism" as violative of Article 14 of the Constitution. 74
It held, that the expression "Rabid" means raging, fanatical.
It is difficult to decide whether any view expressed by the newspaper is fanatical or abusive." A newspaper may be fanatical
about what it considers to be a right cause. It may be abusive
against what it considers to be injurious to the society or the
community. Similarly whether a newspaper distorts news for a
mischievous purpose or not is difficult to determine. It is difficult to say whether the way in which news is presented amounts
to distortion or whether the alleged distortion is mischievous
or not. Similarly, when a newspaper takes sides with a particular group it is difficult to say that it does so for the purpose
of fomenting group rivalries. Again views may vary, whether
a news item amounts to mischievous gossip mongering and sensationalism according to the view of different persons concerned.
Ushodaya Publications (P) Ltd. v. Government of Andhra Pradesh,
A.I.R. 1981 A.P. 109 (F.B.).
Ibid.
C.U.L.R.
D. S. N. Somayayulu
255
The press have a vital role to play in a democratic country. More so in a developing country like India. Now and then
the press may incur the wrath of the government when it exposes the wide gulf between the promises and performances of
the government. At the same time it has to be remembered
that the freedom is not a licence to say or publish what one
pleases. The courts have a duty to see that the freedom is not
abused or curbed through regulations affecting circulation.