CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA

PROJECT OF “TELECOM, PRESS AND MEDIA LAW”

ON
“INDIAN EXPRESS NEWSPAPERS v. UNION OF
INDIA”

Submitted By-

ASHWINI PRIYA

Roll No. - 1013

9th Semester

B.B.A.L.L.B (Hons.)

Submitted To-

Mr. Kumar Gaurav

Faculty of Press, Media and Telecom Law

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 TABLE OF CONTENTS

 RESEARCH METHODOLOGY…………………………….3
 SCOPE OF THE STUDY…………………………………....3
 SOURCES OF DATA……………………………………….3
 CHAPTER 1- INTRODUCTION…….……..........................4
 CHAPTER 2-EPISODE OF 1958………….….....….……....5
 CHAPTER 3- THE 1986 CASE……………...………...........7
 CHAPTER 4- RIGHT TO CIRCULATION: FACET TO
FREEDOM OF SPEECH.....................………......................10
 CONCLUSION......................................................................14
 BIBLIOGRAPHY…………………………………………..15

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RESEARCH METHODOLOGY
The researcher has adopted doctrinal method of legal research. The sources of data are books,
articles, blogs, websites, legal databases, online journals, acts, etc.

SCOPE OF STUDY
The study will examine briefly the facts, issues and judgement of the case.

Moreover, the researcher has also highlighted the role of circulation in freedom of speech and
expression.

SOURCES OF DATA

The primary sources of data includes bare acts.

Secondary sources includes books and online sources, articles, databases, etc.

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 CHAPTER 1 : INTRODUCTION
In words of Blackstone :

“The liberty of press is indeed essential to the nature of a free state …the only plausible
argument heretofore used for restraining the just freedom of the press , “that it was necessary
to prevent the daily abuse of it “, will entirely loose its force , when its shown …that the press
cannot be abused to any bad purpose without incurring a suitable punishment : whereas it
never can be used to any good one, when under the control of an inspector”.

The Indian Constitution provides for this freedom in Article 19(1)(a) which guarantees right
to freedom of speech and expression. It has been held that this right to freedom also includes
press freedom. It is an implied or deduced right. The economic and business aspects of the
press are regulated under Article 19(1)(g) which provides for freedom of profession ,
occupation, trade or business which is restricted by Article 19(6) which includes provisions
for public interest, professional and technical qualifications and state nationalization- total or
partial. Freedom granted under Article 19(1)(a) is restricted by the limitations which are
mentioned in Article 19(2) which provides that the guarantee of the above right would not
affect the operation of any existing law in so far as it is related to , or prevent the state from
making any law relating to libel, slander, defamation, contempt of court or any matter which
offended against decency or morality or which undermined the security of or which tended to
overthrow the state.

Article 19(2)was first amended in 19511. This Amendment enlarged the scope of the
restrictive clause by addition of three new grounds viz. Friendly relations with foreign states ,
public order and incitement to an offence.

As a result of the cries and agitation for secession from India by the regional groups Article
19(2) was further amended . It was amended 2which included one more ground in the clause,
viz. "sovereignty and integrity of India."

1
Constitution (First Amendment) Act, 1951
2
Constitution (Sixteenth Amendment) Act, 1963

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 CHAPTETR 2:THE EPISODE OF 1958
Three years earlier than Sakal Papers v. Union of India,3 the Court was called upon to
decide Express Newspapers v. Union of India4 in 1958. In that case, a statutory Wage Board
had established a minimum wage that newspapers must compulsorily pay to all working
journalists. This was challenged before a Constitution Bench on the ground that the wage in
question was so high that it would drive newspapers out of business. Thus, the regulations of
the Wage Board violated Article 19(1)(a).
After going into a detailed history of minimum wage fixation policies across the world, the
Court examined American cases such as Grosjean, which made it clear that the press was not
immune from general policies of taxation or labour welfare that the government might choose
to pursue. Nonetheless:

“It would certainly not be legitimate to subject the press to laws which take
away or abridge the freedom of speech and expression or which would curtail circulation
and thereby narrow the scope of dissemination of information, or fetter its freedom to choose
its means of exercising the right or would undermine its independence by driving it to seek
Government aid. Laws which single out the press for laying upon it excessive and prohibitive
burdens which would restrict the circulation, impose a penalty on its right to choose the
instruments for its exercise or to seek an alternative media, prevent newspapers from being
started and ultimately drive the press to seek Government aid in order to service, would
therefore be struck down as unconstitutional.” 5
In the present case, the Court found that in substance, the impugned Act was designed to
ameliorate the working conditions of journalists; neither the “intention” nor the
“proximate effect” of the legislation was to abridge the freedom of speech. The feared
consequences of a fall in circulation, the seeking of governmental aid etc. were only
“incidental“, and “would be remote and depend upon various factors which may or may
not come into play.” They were neither “direct”, nor “inevitable“. Hence, the 19(1)(a)
challenged failed.6

3
1962 AIR 305
4
AIR 1958 SC 578
5
Lawrence Liang, http://www.thehoot.org/free-speech/media-freedom/-how-the-press-carved-out-freedom-
of-speech-in-india-8471 Accessed on 1/11/2017 at 18.20 IST.
6
Paragraphs 218 – 219 of AIR 1958 SC 578

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Yet what, precisely, is the distinction between Express Newspapers and Sakal Papers?
How is it that the relationship between a price-per-page policy and newspaper circulation is
proximate, but that between a fixed minimum wage and circulation is not? Why is legislative
intent to open up the market and make it more equitable constitutionally suspect, but an intent
of improving labour conditions not? A newspaper’s inability to access the market because it
can’t compete with the economies of scale that established newspapers run upon is not treated
as an impediment to freedom; but a newspaper’s inability to access the market because it is
required, by law, to pay a certain wage to its journalists is not so treated.

In Sakal Papers, the Court endorsed the existing market; in Express Papers, it made an
exception for price-fixation. In other words, according to the Court, the existing market
subject to tax and labour legislation, are not an impediment upon freedom,
but conditions under which freedom is exercised.

And the Court re-emphasised this position more recently, in 2004, when in Express
Publications (Madurai) v. Union of India7, echoing the direct-intent-and-effect test laid down
in Express Newspapers. Our agreement or disagreement with the judgments in Express
Newspapers and Sakal depends upon our agreement or disagreement with the political
choices that underlie those judgments.
The argument becomes clearer when we compare the decisions above with the famous case
of Bennett Coleman v. Union of India8. In Bennett Coleman, the Newsprint Order (1962) and
the Newsprint Policy (1972) were challenged; the Newsprint Order placed certain restrictions
upon the import of newsprint (complementarily, publishing newspapers in material other than
newsprint was prohibited); while the Newsprint Policy prohibited common ownership units
from starting new newspapers, limited the maximum number of pages to ten, and allowed a
twenty percent increase in page level to newspapers that had less than ten pages.

Bennett Coleman also departed from Express Newspapers in rejecting an object-cum-effect

test in favour of a pure “direct effect” test; once again, though, it is abundantly clear that
“direct effect” is not a question of statistical probabilities, since restricting availability of
newsprint and curtailing the amount of pages a newspaper can have are surely both equally
directly affecting circulation.

7
Writ Petition (Civil) No. 59 of 2001
8
AIR 1973 S.C 106.

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A possible principle is provided in the case of Indian Express Newspapers v. Union of India.
(1984) Responding to a challenge to an import duty placed upon newsprint, the Court
differentiated between those general taxes or duties that would require newspapers to make a
similar contribution to the exchequer as other individuals and business in a similar position,
and those that imposed a fiscal burden over and above such contribution. In Indian Express
Newspapers, the petition was allowed; perhaps then, the conclusion that is to be drawn, on a
combined reading of all these cases, is that by framing a “direct effect” test, the Court has
essentially distinguished between interferences with the freedom of speech and expression,
and background conditions within which that freedom must be exercised. Two of those
background conditions seem to be an unregulated marketplace and general legislative
provisions dealing with taxation and rationing of newsprint that are applicable across the
board. Whether all these cases provide a coherent principle for determining what is to count
as a background condition, and what is to count as an infringement remains, at best, unclear.9

CHAPTER 3: THE 19864 CASE

India Express Newspapers (Bombay) Pvt. Ltd v.UOI 10

Case Summary and Outcome

This case concerns writ petitions challenging the levy of an import duty on newsprint. The
petitioners contended that the duty led to an increase in cost of newspapers and a drop in
circulation, thereby adversely affecting freedom of speech and expression. The Supreme
Court of India allowed the petitions and directed the government to re-examine its taxation
policy in light of the effect on freedom of the press.

Facts

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

9
“Free Speech and Newspaper regulation-III What does it mean to abridge?”August 23,2013 11.34am
https://indconlawphil.wordpress.com/2013/08/23/free-speech-and-newspaper-regulation-iii-what-does-it-
mean-to-abridge/ Accessed on 4/11/2017 at 20.30 IST.
10
AIR 1986 S.C. 515

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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. While the petitions 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,
printing 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:

"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. 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.
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

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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.

The court directed the central government to review within six months the entire question of
levy of customs duty or auxiliary 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. Pending re determination of the levy, the government was
asked to recover only Rs. 550/- per metric ton as customs duty and auxiliary duty. The
concessions made available to medium and small newspapers were not disturbed. 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.

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 ex-poses
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 license 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.

Decision Overview

The Supreme Court of India observed that the government was indeed empowered to levy
taxes affecting the publication of newspapers because such publication could be characterized
as an industry and must be subject to the same levies as other industries. It also allowed that
the classification into small, medium, and large based on economic considerations had a
rational nexus with the objective of taxation and could not be considered arbitrary. However,
where the power of taxation encroaches upon the freedom of expression under Article
19(1)(a), the restriction on the freedom must be within reasonable limits.

Reasonable limits have been outlined in Article 19(2) of the Indian Constitution, wherein
“public interest” is a ground that may be taken to restrict freedom of expression. The Court
concluded that two basic principles must be borne in mind: first, newspapers enjoy the

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benefits of government services like all other industries and must accordingly contribute a
reasonable share of government revenue through taxation; and second, the burden of taxation
must not be excessive.

In context of the present petition, the Court observed that the excessive nature of the burden
was neither adequately proven by the petitioners nor adequately refuted by the respondents. It
stated that a “strict burden of proof’” need not be discharged, considering the possibility of
interference with fundamental rights. It therefore directed the government to re-examine the
taxation policy by evaluating whether it constituted an excessive burden on the newspapers.
The government’s stance that such a consideration was irrelevant was incorrect and,
therefore, the notification had to be revised by taking this factor into consideration.11

CHAPTER 4: RIGHT TO CIRCULATION- FACET TO

FREEDOM OF SPEECH
Freedom of expression has always been emphasized as an essential basis for the democratic
functioning of a society. The reasons for this are:

 the right of an individual to self-fulfilment, which right requires the communication of

thought;
 the importance of constantly attempting to attain the truth, an attempt which is
frustrated if information is suppressed or comment blocked;
 the inherent democratic right to participate in decision-making, which obviously
implies the freedom to obtain, communicate and discuss information; and
 the practical importance of maintaining the precarious balance between healthy
cleavage and the necessary consensus; "coercion of expression is likely to be
ineffective (and)…. Conceals the real problems confronting a society… It is likely to
result in neglect of the grievances which are the actual basis of the unrest and thus
prevent their correction"

11
“Indian Express Newspapers (Bombay) Pvt. Ltd. V. Union of India
https://globalfreedomofexpression.columbia.edu/cases/indian-express-newspapers-bombay-private-ltd-v-
union-of-india/ Accessed on 4/11/2017 at 20.35 IST.

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Freedom of press has always been a cherished right in all democracies. Growth and
development of representative democracy is so much intertwined with growth of press that
the press has come to be recognized as an institutional limb of modern democracy. The
newspaper not only presents facts but also gives interpretation of facts and statements of
opinions through its editorials and also propagates ideas and ideologies. They are supposed to
guard public interests by bringing to fore the misdeeds, failings and lapses of the government
and other bodies exercising governing power. The press has therefore been rightly described
as the Fourth Estate.

Freedom means absence of control , interference/ restriction. Hence, the expression ‘Freedom
of Press’ means the right to print and publish without any any interference from the State or
any public authority.

It is a ‘Basic’ ‘human right’12and also been called as ‘Preferred right’13.What is known as the
freedom of press is nothing but the freedom of expression of every citizen which is
guaranteed by Art 19(1)(a) which includes :

(i) the right to lay what sentiments he pleases before the public, or the right to impart
information and ideas;

(ii) the right to receive information14 and ideas from others through any lawful medium.

Historically, the growth and development of representative democracy is so much intertwined

with the growth of press that the press has come to be recognized as an institutional limb of
modern democracy. Ideologically , the indispensability of the press for the proper functioning
of democracy is so much embedded in U.S.A that Jefferson once said that if he had to choose
between having ‘ a government without newspapers’ on the one hand and ‘newspapers
without a government’ on the other hand he would have no hesitation in preferring the latter.
This was the view which eventually triumphed in the adoption of the first amendment to the
American Constitution in 1791. A democratic political society or government which rests on
the consent of the people and the contribution of their ideas to public questions can rest only
on the free debate and free exchange of ideas amongst the people15. There cannot be any
collective decision after mature deliberation upon any issue unless there is an opportunity for

12
LIC v. Manubhai 1993SC 171.
13
Odyssey v. Lokvidyayan 1988 SC 1642.
14
C F Hamdard Dawakhana v. UOI (1960)2 SCR 672.
15
Roth v. U.S (1957) 354 US 476.

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free exchange of views amongst the participants, which in a representative democracy means
the electorate as well as their representatives assembled in parliament.

In the ultimate analysis, freedom of the press in a representative democracy with a party
government means the right of all political parties to have access to the mass media so that
they may appeal to the electorate on the basis of their respective programmes and ideology.
In short democracy, i.e. government cannot function unless the people are well informed and
free to participate in discussions of public issues by having the widest choice of alternative
solutions of the problems that arise. But in the modern world of speed and manifold
engagements, very few amongst the public have the time or leisure to go through the fountain
sources of information. The daily newspaper is the only material which most people read.
The people can therefore be given the fullest scope for thought and discussion on public
issues , if only the newspaper are allowed to represent different views , including the points
of oppositions , without any control from the government to represent only one shade of
opinion , or the policy adopted by the government . Public criticism is essential to the
working of democracy.16

Contents of Freedom Of Press

Freedom of expression includes the freedom to propagate one’s own views as well as of
others and to communicate them to others, it follows that the freedom of the press includes
the right:

(i) to print and publish news and views.17

(ii) Such views or opinions may be those of the editor or author but also those of other people
printed under his direction.18

(iii) To distribute or circulate such printed matter to any other party.19

(iv) The freedom extends to the discussion and publication of views relating to ‘all issues
about which information is needed to enable the members of society to cope with the
exigencies of the period ; and is not necessarily confined to ‘political’ or ‘public affairs’.

16
Bennet Colemann v. UOI 1973 SC 106.
17
Gopal Dass v. D.M.., 1974 SC 213.
18
Sharma v. Srikrishnan 1959 SC 395
19
Ramesh Thapper v. State of Madras (1950) SCR 594.

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(v) It includes the right to comment on public affairs and to criticize public men and measures
and to criticize the government including its defense policy and the conduct of armed forces ,
without prejudice to national security.20

(vi) A corresponding right to collect information relating to public affairs or the right of
access to the sources of such information.21

(vii) The right of the Press to collect information from diverse sources on a comparative basis
free from any monopolistic control from the government.

(viii) The freedom not to publish any news, article, correspondence or any other matter, nor
to include anything at the dictate of an authority.

(ix) The right to refuse advertisement, including a Government advertisement . if however , a

newspaper accepts Government advertisement , it would be bound to abide by the terms and
conditions of the contract or law relating such contracts.

(x) Freedom of choice in the matter of employment / non- employment of the necessary
means of exercising the freedom of expression , including employment in the editorial force.

(xi) Immunity from any tax specially imposed on the press / on advertisements in a
newspaper which was calculated to limit its circulation.22

20
Gravel v. U.S (1972 ) 408 US 606.
21
Newyork Times v. U.S (1971) 403 US 713.
22
Grosjean v. American Press

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 CONCLUSION
Freedom of press consists of a number of rights and one such right is freedom of publication.
Publication means dis-semination and circulation. Liberty of circulation is as essen-tial to that
freedom as the liberty of publication. Indeed with-out 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. Right to circulation is said to be the facet of Freedom of
Speech which is one of the fundamental rights guaranteed to the citizens of our country under
Art 19(1)(a) of our Constitution.

Freedom to circulate extends not merely to the matter which the press is entitled to circulate
but also the volume of circulation23. In short its both quantitative and qualitative24.Our
constitution guarantees freedom of thought and expression , the only limas being imposed is
under Art 19(2).Every newspaper posses the right to publish anything it likes , unfettered
either by prior restraint or subsequent punishment in any form . The freedom of the press is
hampered if the editorial policy of a newspaper is controlled or influenced either by the State
or by private persons , parties or financers whose only object is to secure their respective
interests irrespective of the public interests in the dissemination of information and ideas
from competing sources , provided , of course , its not unlawful. The freedom of a newspaper
or other publication, from the aspect of volume of circulation, means that it is entitled to
propagate its ideas and views and reach any class and number of readers as it chooses,
subject, of course, to constitutionally permissible restrictions and to print and publish any
number of pages it chooses. This freedom would be undermined by any excessive burden
imposed on the press which narrows its scope of dissemination of information / renders it so
uneconomical as to ultimately compel it to seek Government aid, which would obviously
destroy its freedom.

23 Sakal Papers v. UOI (1962) 3 SCR 842.

24 Bennet Colemann v. UOI 1973 SC 106.

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 BIBLIOGRAPHY

PRIMARY SOURCES-

 THE CONSTITUTION OF INDIA, 1950

SECONDARY SOURCES-

 Indian Express Newspapers (Bombay) Pvt. Ltd. V. Union of India

https://globalfreedomofexpression.columbia.edu/cases/indian-express-newspapers-
bombay-private-ltd-v-union-of-india/ Accessed on 4/11/2017 at 20.35 IST.
 Free Speech and Newspaper regulation-III What does it mean to abridge?”August
23,2013 11.34am https://indconlawphil.wordpress.com/2013/08/23/free-speech-and-
newspaper-regulation-iii-what-does-it-mean-to-abridge/ Accessed on 4/11/2017 at
20.30 IST.
 Lawrence Liang, http://www.thehoot.org/free-speech/media-freedom/-how-the-press-
carved-out-freedom-of-speech-in-india-8471 Accessed on 1/11/2017 at 18.20 IST.
 D.S.N. Somayayalu, Freedom of Press and Right to Circulation
http://dspace.cusat.ac.in/jspui/bitstream/123456789/11443/1/Freedom%20of%20Press
%20and%20Right%20to%20Circulation.PDF Accessed on 30/10/2017 at 22.30 IST.

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