INTRODUCTION

Democracy can flourish only where its citizens enjoy full freedom of speech and expression
subject only to reasonable restrictions. Hence due to this anxiety only the press council of India
was born in 1954. But if, we look to the historical background of the Media law, we will find
that, it was as early as in 1799 that first time, Lord Wellesley promulgated the “Press
Regulations”, which had the effect of imposing pre-censorship on an infant newspaper
publishing industry. Thereafter, in 1835 the “Press Act” was passed. Then in 1857 the
government passed the ‘Gagging Act’, which among various other things, introduced
compulsory licensing for the owning or running of printing presses; empowered the
government to prohibit the publication or circulation of any newspaper, book or other printed
material and banned the publication or dissemination of statements or news stories which had
a tendency to cause a furor against the government, thereby weakening its authority. The
process continued, but the constitution makers brought the most significant change, by inserting
Article 19 (1) (a) in the part III, as fundamental right of the constitution. This speaks about the
freedom to express & expression. This only led to the formation of Press Council of India.
Although, the Indian Constitution does not expressly mention the liberty of the press, it is
evident that the liberty of the press is included in the freedom of speech and expression under
Article 19(1) (a). Keeping this in mind Venkataramiah, J. of the Supreme Court of India in
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India11 has stated: “In today’s free
world freedom of press is the heart of social and political intercourse. The press has now
assumed the role of the public educator making formal and non-formal education possible in a
large scale particularly in the developing world, where television and other kinds of modern
communication are not still available for all sections of society. The purpose of the press is to
advance the public interest by publishing facts and opinions without which a democratic
electorate [Government] cannot make responsible judgments. Newspapers being purveyors of
news and views having a bearing on public administration very often carry material which
would not be palatable to Governments and other authorities.”
 STATEMENT OF PROBLEM AND HYPOTHESIS

With object and views, the Preamble of the Indian Constitution ensures to all citizens inter alia,
liberty of thought, expression, belief, faith and worship. The constitutional significance of the
freedom of speech consists in the Preamble of Constitution and is transformed as fundamental
and human right in Article 19(1) (a) as “freedom of speech and expression”.
But the Supreme Court of India has held that there is no specific provision ensuring freedom
of the press separately. The freedom of the press is regarded as a “species of which freedom of
expression is a genus”. Therefore, press cannot be subjected to any special restrictions which
could not be imposed on any private citizen, and cannot claim any privilege (unless conferred
specifically by law), as such, as distinct from those of any other citizen

The present study is intended to present the provisions of the Indian Constitution and other
national instruments which recognise the freedom of press as an integral part of the freedom of
speech and expression, the basic fundamental rights of human being. It is also to be examined
how far freedom of press has constitutional significance in achieving the free, fair and real
democracy.

The study covers the view taken by the Hon’ble Supreme Court on the subject. The main object
of providing guaranteed freedom of press is for creating a fourth institution beyond the control
of State authorities, as an additional check on the three official branches—the executive, the
legislature and the judiciary. It is the primary function of the press to provide comprehensive
and objective information on all aspects of the country’s social, economic and political life.
 RESEARCH METHODOLOGY

The topic for the research study and the nature of the topic is theoretical and descriptive. So
the conduct, the research study & the type of research suitable is descriptive research only. In
the research and theoretical articles, effective use of secondary analysis of published results
has been made. Secondary data has been used as a part of research. Paper-based sources like
books, journals, periodicals, abstracts, research reports, conference papers, internal records,
newspapers and magazines were used. This study conducted exploratory and descriptive
research on Fundamental Rights enshrined in the Indian constitution. The researcher collected
data from various resources and used the data management tools and procedures in preparation
of analysis. As appropriate for an explanatory and descriptive in which study‟s design evolved
over the period of research. There was not a clearly demarcated line between data collection,
data analysis and preliminary write-up of the findings. Choosing the secondary source over the
period of research included analysis and determination of relevance. Quantitative analysis has
been done along with a case study.
 AN OVERVIEW OF THE CONSTITUTIONAL
PROVISIONS AND OTHER LEGISLATIONS
REGULATING FREEDOM OF PRESS IN INDIA

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 Freedom Of Press In India 2010 ~ 17 ~
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) has been
amended twice since the commencement of the Constitution. The first Amendment was in 1951
and it was followed by a second one in 1963. Article 19(2) was first amended by the
Constitution (First Amendment) Act, 1951. 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. The term ‘defamation’ being a generic one and ‘libel’
and ‘slander’ being its species ; that term and the words ‘tends to overthrow the state’ was
dropped by the Amendment. The expression ‘security of the state’ was meant to cover the
ground ‘to over throw the state’ also. Another feature of the first Amendment was inclusion of
the word “reasonable” before the word “restrictions”. 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
by the Constitution [Sixteenth Amendment] Act 1963 which included one more ground in the
clause, viz. “sovereignty and integrity of India.” The clause, Article 19(2) now runs as follows:
“Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent
the state from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the interest of the sovereignty and
integrity if India, the security of the state, friendly relations with foreign states, public order,
decency or morality, or in relation to contempt of court, defamation or incitement to an
offence.” Although Article 19 (1) (a) is limited by the above clause the courts have adopted a
liberal view while deciding questions pertaining to press freedom of constitutional validity of
an impugned statute. The superior courts discharged the role of sentinel on the qui vive. The
Supreme Court has emphasized the great value of the freedom of press in democratic society.
Thus from the start the judiciary has vindicated the stand taken in the Constituent Assembly.
In Romesh Thapper v State of Madras16 the Supreme Court struck down as violating Article
19(1) (a), the Madras Freedom Of Press In India 2010 ~ 18 ~ Maintenance of Public Order Act
1949, whose section 9[1A] sought to impose restrictions on the freedom of press not against
undermining the security of the state or its overthrow but for the wider purpose of securing
public safety or maintenance of public order; as in the opinion of the Court the law fell outside
the scope of Article 19(2). The Court laid down the following rule that so long as the possibility
of a law being applied for purposes not sanctioned by the Constitution cannot be ruled out; it
must be held to be wholly unconstitutional and void since it is not severable. The Court also
struck down in Brij Bhushan vs. State of Delhi17 which was essentially on the same lines , the
East Punjab Public Safety Act1949 which, through its section 7 (1) (o) , provided for special
measures to ensure public safety and the maintenance of public order. In re the Bharati Press
the validity of section 4 (1) (a) of the Press [Emergency Powers] Act 1931 was in question.
The section which dealt with incitement to an offence was held to be worded in general terms
and was declared ultra vires (beyond the legal capacity of a person, company, or other legal
entity) by the Patna High Court as it could have been applied to both ‘aggravated forms of
offences like political assassination and as also to ordinary murders or cognizable offence
involving violence.’ Hence Constitution First Amendment Act, 1951 was passed to include the
grounds of public order and incitement to an offence to meet the situation which arose from
Supreme Court’s decision in Romesh Thappar’s case, Brij Bhushan vs. State of Delhi19 also
dealt with the question of validity of censorship. It was held that such censorship on a journal
previous to its publication would amount to infringement of Article19 (1) (a). The Supreme
Court held in the Auto Shankar case that the government has no authority in law to impose a
prior restraint upon publication of defamatory material against its officials.20 The Court also
observed that to propagate ones ideas every citizen has a right to publish, disseminate and
circulate them to reach any class and any number of readers subject of course to the limitations
permissible under a law competent under Article19(2).21 Freedom of press is also both
qualitative and quantitative.22 The view of the Courts regarding press freedom can be summed
up as follows: “The expression ‘freedom of press’ has not been used in Article 19 but it is
comprehended within Article 19(1) (a). The expression 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 the public interest by publishing facts and opinions
without which a democratic electorate cannot make responsible judgments. Freedom of press
is a heart of social and political intercourse; it is the primary duty of Courts to uphold the
freedom of press and invalidate all laws or administrative actions which interfere with it
contrary to the constitutional mandate.”23 The 44th Amendment [1978] of the Constitution
also provides for constitutional protection for journalists from ‘breach of parliamentary
privilege’ as they are allowed to publish proceedings of the Parliament and state legislatures.
Article 361-A was incorporated into the Constitution by this amendment and it provides that
‘No person shall be liable to any proceedings, civil or criminal, in any Court in respect of the
publication in newspaper of a substantially true report of any proceedings of either house of
Parliament or the Legislative Assembly or as the case may be either house of legislature of a
state; unless publication is proved to have been made with malice.’ Article 19 of Universal
Declaration of Human Rights is recognized and followed in India, which states that: “Everyone
has the right to freedom of opinion and expression; this right includes freedom to hold opinions
without interference and to seek, receive and impart information and ideas through any media
and regardless frontiers.”
 FREEDOM OF PRESS — AREAS OF REASONABLE
RESTRICTIONS

Lord Denning in his book Road to Justice observed that press is the watchdog to see that every
trial is conducted fairly, openly and above board, but the watchdog may sometimes break loose
and has to be punished for misbehaviour. The dangers of the unanalyzed discretion given to
Lok Adalats have been recognised by some States and pursuant to Section 28 of the Legal
Services Authorities Act; Regulations have been framed in relation to the conduct of Lok
Adalats. The Kerala Regulations, 1998, framed by the Kerala Legal Services Authority
(KELSA), provide a model of good practice. Regulation 28 makes it mandatory for notice to
be issued to the parties in a dispute in order to enable them to prepare their case. This embodies
the right to a fair hearing. Regulation 31 explicitly lays down that the Bench is to restrain itself
to a conciliatory role and make efforts to bring about a settlement “without bringing about any
kind of coercion, threat or undue influence, allurement or misrepresentation”. Under
Regulation 33, the Bench is required to obtain the signatures of the parties to the dispute, in
addition to the signatures of the Members of the Bench. This Regulation ensures that the parties
are given adequate notice and are present during the proceedings. It is necessary to maintain
and preserve freedom of speech and expression in a democracy, so also it is necessary to place
some restrictions on this freedom for the maintenance of social order, because no freedom can
be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of
India, the State may make a law imposing “reasonable restrictions” on the exercise of the right
to freedom of speech and expression “in the interest of” the public on the following grounds:

1. security of the State,

2. friendly relations with foreign States,
3. public order,
4. decency and morality,
5. contempt of court,
6. defamation,
7. incitement to an offence, and
8. Sovereignty and integrity of India.
Grounds contained in Article 19(2) show that they are all concerned with the national interest
or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States and public order are all
grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality,
contempt of court, defamation and incitement to an offence are all concerned with the interest
of the society. As we concern with the restrictions imposed upon the media, it is clear from the
above that a court evaluating the reasonableness of a restriction imposed on a fundamental right
guaranteed by Article 19 enjoys a lot of discretion in the matter. It is the constitutional
obligation of all courts to ensure that the restrictions imposed by a law on the media are
reasonable and relate to the purposes specified in Article 19(2). In Papnasam Labour Union v.
Madura Coats Ltd. the Hon’ble Supreme Court has laid down some principles and guidelines
to be kept in view while considering the constitutionality of a statutory provision imposing
restriction on fundamental rights guaranteed by Articles 19(1)(a) to (g) when challenged on the
grounds of unreasonableness of the restriction imposed by it. In Arundhati Roy, In re the
Hon’ble Supreme Court has considered the view taken by Frankfurter, J. in Pennekamp v.
Florida in which Judge of the United States observed: (US p. 366) “If men, including judges
and journalists, were angels, there would be no problem of contempt of court. Angelic judges
would be undisturbed by extraneous influences and angelic journalists would not seek to
influence them. The power to punish for contempt, as a means of safeguarding judges in
deciding on behalf of the community as impartially as is given to the lot of men to decide, is
not a privilege accorded to judges. The power to punish for contempt of court is a safeguard
not for judges as persons but for the function which they exercise.” In Rajendra Sail v. M.P.
High Court Bar Assn. the editor, printer and publisher and a reporter of a newspaper, along
with the petitioner who was a labour union activist, were summarily punished and sent to suffer
a six months’ Freedom Of Press In India 2010 ~ 28 ~ imprisonment by the High Court. Their
fault was that on the basis of a report filed by a trainee correspondent, they published
disparaging remarks against the judges of a High Court made by a union activist at a rally of
workers. The remarks were to the effect that the decision given by the High Court was
“rubbish” and “fit to be thrown into a dustbin”. In appeal the Supreme Court upheld the
contempt against them, but modified and reduced the sentence. In D.C. Saxena (Dr.) v. Chief
Justice of India the Hon’ble Supreme Court has held that no one else has the power to accuse
a judge of his misbehaviour, partiality or incapacity. The purpose of such a protection is to
ensure independence of judiciary so that the judges could decide cases without fear or favour
as the courts are created constitutionally for the dispensation of justice. By these above
observations and the judgment we can say that restrictions imposed by Article 19(2) upon the
freedom of speech and expression guaranteed by Article 19(1)(a) including the freedom of
press serve a two-fold purpose viz. on the one hand, they specify that this freedom is not
absolute but are subject to regulation and on the other hand, they put a limitation on the power
of a legislature to restrict this freedom of press/media. But the legislature cannot restrict this
freedom beyond the requirements of Article 19(2) and each of the restrictions must be
reasonable and can be imposed only by or under the authority of a law, not by executive action
alone.
 CASE ANALYSIS

The Bennett Coleman case arose in the following circumstances : In India, there is a shortage
of indigenous newsprint. To fill the gap, newsprint has to be imported from foreign countries.
As India's foreign exchange position is also not very comfortable, it is not possible to permit a
liberal import of newsprint to meet fully the requirements of the news papers. Accordingly,
some restrictions have to be imposed on the import, acquisition, sale and consumption of
newsprint. For this purpose, it becomes necessary to lay down some norms. The import of
newsprint is regulated by the central government under the Import Control Order, 1955, issued
under the Imports and Exports Control Act, 1947. Restric tions on acquisition, sale and
consumption of newsprint within the country are regulated by ths central government under
Newsprint Control Order, 1962, promulgated under the Essential Commodities Act, 1955.
According to the order, no consumer, other than an importer, can acquire newsprint except
under an authorisation issued by the controller, and no consumer of newsprint is to consume
newsprint more than the quantity authorised by the controller. No consumer of newsprint other
than a publisher of text books or general books, can use any kind of paper other than newsprint
except with the permission, in writing, of the controller. In issuing the authorisation, the
controller has to have regard to the principles laid down in the Import Control Policy regarding
newsprint annouced by the central government from time to time. The Import Control Policy
for the year 1972-73 laid down that

(1) The basic entitlement of individual newspapers or periodicals for newsprint is to be

determined on the basis of its actual consumption (taking into account its average circulation,
average page area actually published) in 1970-71 or 1971-72, whichever is less, except in case
of daily newspapers whose actual number of pages was more than an average of 10 during
either of the two base years.

(2) For Dailies with circulation up to 100,000 copies a 10 per cent increase over their basic
entitlement was to be granted in import ing newsprint, and 3 per cent increase over their basic
entitle ment was to be granted in imported newsprint for dailies with circulation of more than
100,000 copies.
(3) A 20 per cent increase was also to be allowed to daily news papers in the number of pages-
within the ceiling of 10- over the average number of pages on which the basic entitlement is
fixed under norm (1) above.

(4) With the exception of the allotment mentioned in (3) above, no allocation of newsprint was
to be made to newspapers/periodicals on account of increase in their circulation, etc.

(5) No newsprint was to be made available for existing newspapers belonging to a 'common
ownership unit, which had not been granted newsprint quota, and for additional newspaper(s)
sponsored or acquired by common ownership unit, nor were they to be allowed to bring out
new newspaper(s)/periodicals out of the authorised quota. It would appear that the dominant
direction of the policy was designed to curtail the growth of big newspapers. The maximum
number of pages for a newspaper was fixed at 10. The circulation of newspapers was also
sought to be restricted. No new paper or new edition of a paper could be started by a 'common
ownership unit' even within the authorised quota of newsprint. No adjustment was allowed
between circulation and the pages so as to increase the number of pages beyond 10. No inter
changeability was permitted between different papers of common ownership unit or different
editions of the same paper. Allowance of 20 per cent increase in page level up to a maximum
of 10 had been given to newspapers with less than 10 pages but not to newspapers having 10
pages. In the newsprint policy for the year 1971-72 and the earlier periods, the newspapers and
periodicals were permitted to increase the number of pages, page-area and periodicity by
reducing circulation. In the 1972-73 policy, however, big daily newspapers were prohibited
and prevented from increasing the number of pages, page-area and periodicity by reducing
circulation to meet their requirements even within their admissible quota. Three leading
newspapers publishing concerns, Bennett Coleman & Co., The Hindustan Times Ltd., The
Indian Express (Madurai), filed writ petitions in the Supreme Court under article 32
challenging the several restrictions imposed on the newspapers. The newspapers represented
by these concerns were : The Times of India, The Hindustan Times, The Indian Express and
the Hindu. These concerns were joined in the writ petitions by several readers, newspaper-
editors and shareholders. 'Common Ownership Unit' means a newspaper establishment or
concern owning two or more newspapers including at least one daily irrespective of the centre
of publication and language of such newspapers. Wide ranging arguments were raised against
the validity of the Import Order, the Newsprint Control Order and the Newsprint Import Policy.
It was argued that the restrictions on the number of pages, circulation and growth of newspapers
were unreasonable and arbitrary under article 19(l)(f). It was contended that the curbs on size
and circulation of newspapers constituted a direct infringement of freedom of speech and ex
pression. The refusal by the government to allow the newspapers to increase circulation of their
dailies, within the quota of newsprint allowed, it was argued, was unjustified, for it should be
for the newspapers concerned to decide whether it should increase the circulation or the pages
without asking for any additional quota. The 1972-73 policy allowed a 20 per cent increase
only to daily newspapers whose number of pages was less than 10. This, it was argued, was
discriminatory qua newspapers having 10 or more than 10 pages and thus infringed article 14.
It was argued that the difference between the entitlement of newspapers with an average of
more than 10 pages as compared with newspapers of 10 or less than 10 pages, was based on no
rational differentia for classification. It was argued that the 10-page restriction was causing a
reduction of the newspaper circulation and was also resulting in financial loss to them, and this
was a negation of the fundamental right guaranteed by article 19 (l)(f) because a restriction had
been placed on the potentiality of the newspapers of being able to express and disseminate
information which was vital and fundamental to democracy. The argument, in effect, was that
the government was, in fact, controlling the newspapers by a subtle newsprint control policy.
The newsprint policy was denounced as being based on considerations which were extraneous
to the statute under which the allocation was made, viz., the Import Control Act. Under the
Act, the policy could concern itself only with imports and not with production, control and
distribution of newspapers. The policy was also challenged on the ground that it was merely
an administrative instruction in nature and had no authority of law. On the government side,
the dominant argument urged in support of the newsprint policy was that it did not "directly
and immediately" deal with the right mentioned in article 19 (l)(f) and that restrictions
'incidental' to the fixation of newsprint quota for newspapers did not constitute an abridgement
of freedom of speech and expression. The test to decide whether or not a restriction was
reasonable, it was urged by the government, was not the 'effect' or the 'result' of the newsprint
policy but whether the policy ' directly and immediately ' dealt with the fundamental right in
question, i.e., article 19 (l)(tf). The test, it was argued, was the 'subject matter' and not the 'effect
or the result' of the legislation. The government contended that the 'subject-matter' of the import
policy was 'rationing of an imported commodity and equitable distribution of newsprint', and
not to interfere with the freedom of speech. The government denied that there was any hidden
objective to control newspapers. It insisted that the page restriction was "consequential" on the
newsprint quota fixation, for the reason that the allocation to newspapers was based on page
level and circulation. Newsprint was a scarce commodity and it had to be rationed to enable
newspapers to use it and express their views. In calculating the quota for each newspaper, the
number of pages and circulation were two relevant factors. The restrictions in fixing the page
level and circulation were justified on the ground that it was necessary to see that the imported
newsprint was properly utilised for the purpose for which the import was considered necessary.
Control on the number of pages was justified on the ground that the government wanted to
increase circulation so that more and more people could get the news. The policy was defended
by the government as being in aid of allowing small newspapers to grow and to prevent a
monopolistic combination of big newspapers.

The writ petitions were heard by a Bench of five judges consisting of Sikri, C.J., A.N. Ray, P.
Jagannath Reddy, K.K. Mathew and M.H. Beg, JJ. Three judgments were delivered. The
majority judgment delivered by Justice Ray on behalf of himself, Chief Justice Sikri and Justice
Reddy declared the Newsprint Control Policy as unconstitutional under articles 19 (l)(a) and
14. Justice Beg in a separate judgment concurred with the majority. Justice Mathew alone
supported the policy in question. Two points raised on behalf of the government against
consideration of writ petitions by the court may first be noted before going into the merits of
the controversy. Firstly, it was argued that the petitioners were com panies, and could not,
therefore, claim the fundamental rights under article 19 (i)(a) as had been held earlier by the
court in the State Trading Corporation case, and the Tata Engineering and Locomotive case.10
The court did not have much difficulty in rejecting the objection. It held that the relief was
being claimed not only by the companies but by shareholders, editors and newspaper readers
as well, and there are a number of court cases where relief has been granted in such
circumstances, to wit, the Express Newspapers case11 and the Sakal Papers case. In the Bank
Nationalisation case, the petitions were filed under article 32 by the banking companies, a
shareholder, a director and a holder of current account deposits under article 19 (l)(tf) in a bank
to challange the constitutional validity of the Banking Companies (Acquisition and Transfer of
Under takings) Act, 1969. The petitions were held to be maintainable in this case as the rights
of the shareholders as well as of the companies were involved. In the light of these ealier
pronouncements, the petitions in the instant case were also held to be maintainable as the rights
not only of the newspaper companies but also of the editors, newspaper readers and
shareholders who were joined in the petitions, were involved under article J 9 (l)(tf). On this
point the majority judgment has this to say :
In the present case, the individual rights of freedom of speech and expression of editors,
Directors and shareholders are all exercised through their newspapers through which they
speak. The press reaches the public through the newspapers. The shareholders speak through
their editors. The fact that the companies are the petitioners does not prevent this Court from
giving relief to the shareholders, editors, printers who have asked for protection of their
fundamental rights by reason of the effect of the law and of the action upon their rights. The
locus standi of the shareholder petitioners is beyond challange after the ruling of this Court in
the Bank Nationalisation case. The presence of the company is on the same ruling not a bar to
the grant of relief. It would thus appear that much of the adverse effect of the State Trading
Corporation case on the fundamental rights of companies has now been neutralised or diluted
by the Supreme Court's rulings in the Sakal Papers case ; the Bank Nationalisation case and the
instant case. It now appears that writ petitions can be filed by corporate bodies when joined in
by the affected individuals to invoke the fundamental rights granted only to the citizens by the
Constitution. Another objection raised by the government to the maintainability of the writ
petitions was that since a proclamation of emergency under article 352 was in force and since
article 19 was thus suspended under article 358, no petition to challenge the Newsprint Import
Policy for the period 1972-73 under article 19(l)(f) could be brought into the court.16 The court
rejected this contention also by saying that the policy in question was a continuation of the old
newsprint policy which had been in operation from year to year for a decade till the
proclamation of emergency in 1971. Citing a few of the court's earlier pronouncements,17 it
made the point :
“Article 358 does not apply to executive action taken during the emergency if the same is a
continuation of the prior executive action or an emanation of the previous law which prior
executive action or previous law would otherwise be violative of Article 19 or be orther wise
unconstitutional.’’

The majority observed further on this point : Executive action which is unconstitutional is not
immune during the proclamation of emergency. During the proclamation of emergency Article
19 is suspended. But it would not authorise the taking of detrimental executive action during
the emergency affecting the fundamental rights in Article 19 without any legis lative authority
or in purported exercise of power conferred by any pre-emergency law which was invalid when
enacted. On the merits of the controversy, the Newsprint Control Policy has been held to be
void in the majority judgment delivered by Justice Ray. The court conceded the right of the
government to import newsprint and to control the distribution thereof provided that it is fair
and equitable and the interests of big, medium and small newspapers are taken into
consideration in allotting quotas;. But, in view of the majority, in the garb of regulating
distribution of newsprint, the government had sought to control the growth and circulation of
newspapers. In effect, the 'newsprint policy' became a 'newspaper' control policy. Rationing of
newsprint was 'newsprint' control. That is where a quota is fixed. 'Newspaper' control can be
said to be post-quota restrictions. The freedom of the press, Justice Ray has stressed, is both
'qualitative' and 'quantitative' ; the freedom guarantees both 'circulation' and 'content'. The
newspapers must be left free to determine their pages, their circulation and their new editions
within their quota of what had been fixed fairly. Accordingly, the restrictions which constrict
the newspapers in adjusting their page number and circulation must be struck down. The
restriction fixing the 10-page limit was held void. The distinction drawn between newspapers
with circulation over and under 1 lac copies as regards increase in basic entitlement was he'd
to be discriminatory under article 14 and so void. The prohibition against common ownership
unit from starting a new newspaper/periodical or a new edition was also struck down. The
government had invoked the 'pith and substance' test to uphold the validity of the import policy.
It was argued that one method of controlling import is to regulate the use and disposition of the
goods after they are bought. It was also argued that the newsprint policy's subject matter was
not freedom of speech but rationing of imported commodity. It was argued that the test to
adjudge the validity of a regulatory provision was the “subject-matter” and not its "effect or
result". The majority, however, held that the tests of "pith and substance", of the subject-matter
and direct and incidental effect of legislation were relevant to questions of legislative
competence but were irrelevant to the questions of fundamental rights. The majority enunciated
the test whether the 'effect' of the impugned action is to take away or abridge fundamental
rights. A legislation or government action may have a direct effect on a fundamental right
although its direct subject-matter may be different. The object of the law or executive action is
irrelevant when it infringes a fundamental right. In the instant case, the object of the restriction
imposed on newspapers by way of control on the number of pages or circulation of newspapers
had nothing to do with the availability of newsprint or foreign exchange because these
restrictions came into operation after the grant of the quota, and these fell outside article 19. In
the instant case, the freedom under article 19 (l)(f) was violated by a restriction on the number
of pages to be printed by a newspaper, restriction on circulation and restriction on
advertisements, prohibition against new newspapers and new editions. The effect and
consequence of the policy on the newspapers was directly controlling the growth and
circulation of newspapers. Commenting on that aspect of the policy which laid down that the
newspapers with less than 10 pages would get their quota of newsprint on the basis of
consumption during 1970-71 or 1971-72 whichever is less, the majority held that this aspect of
the policy ignored the increased circulation of a newspaper in any one of the years and thus
directly affected circulation of newspapers. As regards papers having over 10 pages, the policy
led to a substantial cut in their pages and brought these down to 10. The main source of income
for newspapers was from advertisements. Advertisements were also one of the factors for
circulation. As a result of the cut in page number, apart from depriving them of the freedom to
express and publish their views, the area of advertisements was also reduced; this caused
financial loss to the newspapers and thus their economic viability was affected.20 The policy
of limiting all papers whether small or large, or in English or an Indian language, to 10 pages
was held to be arbitrary as it treated unequals as equals and was discriminatory against those
who, by virtue of their efficiency, standard and service and because of their all India stature,
had acquired a higher page level in 1957, the year taken as the base-year to determine quotas.
The majority objected to the restriction on increasing pages at the cost of circulation. In its
opinion, the individual requirements of different dailies may render it eminently desirable in
some cases to increase the number of pages rather than circulation. The court's view was that
while local language dailies should be allowed to grow, the English dailies should not be forced
to languish under a policy of regimentation. The restrictions imposed by the newsprint policy
cut at the very root of the guaranteed freedom. The restrictions to control the number of pages
or circulation of dailies or newspapers did not fall within article 19(2). Justice Beg held the
import policy bad on the ground that it imposed restrictions on the actual mode of user of
newsprint by the newspapers for publication of information or views without the authority of
any law. Hence, he held that it was not necessary to consider whether restrictions imposed were
reasonable either under article 19 (2) or 19 (6). Justice Mathew alone supported the order.
According to him, the newsprint was scarce in the country and it has, therefore, to be rationed.
The freedom of speech does not mean that newspapers can obtain any amount of newsprint.
He took the view that it would be an integral part of any system of rationing to tell the consumer
that it should maintain the page level and circulation of the paper. According to him, any
curtailment of speech occasioned by rationing of newsprint due to its scarcity can only affect
freedom of speech indirectly and, consequently, there would not be any abridgment.
 CONCLUSION

We have to remember that fundamental right of free expression also includes fair comment
and criticism and as has been pointed out by Chief Justice (ret.) P.B. Gajendragadkar the
freedom of expression of opinion “does not mean tolerance of the expression of opinions with
which one agrees but tolerance of the expression of opinions which one positively dislikes or
even abhors.” Scrutiny of public figures by the fourth estate is a stipulation which cannot be
done away with. Basic issues relating to Article 19 (1) (a) personal liberties and the principles
of natural justice need to be settled. Existing privilege laws are a bit too ambiguous and
expansive in nature as it doesn’t define what exactly constitutes a breach of privilege or
Contempt of House. Hence there is need to codify privileges. “It is important to safeguard the
freedom of speech and expression and the freedom of the press as it is central to the survival
of democracy,” observed Mumbai High Court Chief Justice F T Rebello. It should not be
forgotten that the press has a duty to show that it serves public interest at large. It is also the
essential duty of press to strike that proper balance between citizen’s right to privacy and
public’s right to information vis-à-vis the role of media i.e. the press. The press should show
their functional accountability. It has to be remembered that this freedom of press is not
absolute, unlimited and unfettered at all times and in all circumstances as giving an
unrestricted freedom of the speech and expression would amount to an uncontrolled licence.
If it were wholly free even from reasonable restraints it would lead to disorder and anarchy.
The freedom is not to be mis-understood as to be a press free to disregard its duty to be
responsible. In fact, the element of responsibility must be present in the conscience of the
journalists. In an organised society, the rights of the press have to be recognised with its
duties and responsibilities towards the society. Public order, decency, morality and such other
things must be safeguarded. The protective cover of press freedom must not be thrown open
for wrong doings. If a newspaper publishes what is improper, mischievously false or illegal
and abuses its liberty it must be punished by Court of Freedom Of Press In India 2010 ~ 30 ~
Law. The Editor of a Newspaper or a journal has a greater responsibility to guard against
untruthful news and publications for the simple reason that his utterances have a far greater
circulation and impact then the utterances of an individual and by reason of their appearing in
print, they are likely to be believed by the ignorant. Therefore, certain restrictions are
essential even for preservation of the freedom of the press itself. To quote from the report of
Mons Lopez to the Economic and Social Council of the United Nations “If it is true that
human progress is impossible without freedom, then it is no less true that ordinary human
progress is impossible without a measure of regulation and discipline”. It is the duty of a true
and responsible journalist to strive to inform the people with accurate and impartial
presentation of news and their views after dispassionate evaluation of the facts and
information received by them and to be published as a news item. The presentation of the
news should be truthful, objective and comprehensive without any false and distorted
expression.