Bennett Coleman vs Union of India

Facts of Bennett Coleman vs Union of India

The petitioners in Bennett Coleman vs Union of India, comprising media conglomerates engaged in newspaper publication,
contested the constraints imposed on newsprint importation as per the Import Control Order 1955. They also challenged the
regulations governing the utilisation of newsprint by newspapers under the Newsprint Order 1962.

Additionally, the Newsprint Policy of 1972-73 introduced further restrictions based on four criteria: firstly, establishments owning
more than two newspapers, with at least one being a daily, were prohibited from launching new newspapers; secondly, the total
number of pages for any newspaper was capped at ten; thirdly, newspapers with less than ten pages were restricted to a 20%
increase in the number of pages; and lastly, no interchangeability of newsprint was permitted between different newspapers of the
same establishment or between various editions of the same paper.

Consequently, the petitioners were unable to make adjustments within the quota limit, such as modifications in circulation. This led
to a challenge on the grounds of a violation of Article 19(1)(a) of the Indian Constitution.

The respondents contended that the petitions were not maintainable as corporations do not possess fundamental rights, which are
exclusively applicable to natural persons. Furthermore, they argued that Article 358, the constitutional provision delineating
“emergency powers,” precluded challenges based on fundamental rights.

They advocated for a subject-matter test of restriction rather than an “effects test,” asserting the validity of the restrictions as they
aimed to regulate the commercial operations of newspapers, preventing monopolies. Any impact on freedom of expression was
deemed incidental. Finally, the respondents maintained that the question of whether newsprint import should be increased was a
policy matter beyond challenge, except on grounds of “mala fide.”

Issues Raised
The issues raised in Bennett Coleman vs Union of India under consideration were as follows:

 Whether the petitioners, being corporate entities, had the standing to invoke fundamental rights.
 Whether Article 358 of the Constitution served as a impediment to any challenge by the petitioners regarding violations of
fundamental rights.
 Whether the restrictions imposed on newsprint import under the 1955 Order amounted to a violation of Article 19(1)(a) of the
Constitution.
 Whether the Newsprint Policy fell within the purview of Clause 5(1) of the Import Control Order 1955 and was consequently
valid.
 Whether clauses 3 and 3A of clause 3 of the 1962 Newsprint Order infringed upon the provisions of Articles 19(1)(a) and 14 of
the Constitution.
 Whether Remarks V, VII(a), VII(c), VIII and X of the Newsprint Policy for 1972-73 were in contravention of Articles 19(1)(a) and
14 of the Constitution.

Arguments of Bennett Coleman v Union of India

Petitioner’s Arguments
The petitioners in Bennett Coleman vs Union of India asserted that the Newsprint Control Policy of 1972–1973 infringed upon their
right to free speech and expression, a right exercised through their editorial staff and the medium of publication.
The counsel for the petitioners argued that the 1972-73 policy allowed a 20% increase only for daily newspapers with less than 10
pages, deeming this discriminatory towards newspapers with 10 or more pages, thereby violating Article 14. It was contended that
the distinction between newspapers exceeding and those with 10 or fewer pages lacked a reasonable basis for classification.
Mr. Nani Palkhivala contended in Bennett Coleman v. Union of India that the newsprint policy effectively constituted a form of
‘newspaper control,’ positing it as a subtle and sophisticated means to regulate newspapers. The petitioners claimed a violation of
the Import Control Act and the Import Control Order, with the argument that the legislative authority under Entry 19 of List 1 in the
1935 Act empowered Parliament to regulate imports.
The petitioners argued that Article 358 was inapplicable as it does not extend to laws or executive actions predating the emergency
proclamation. They contended that the Newsprint Policy was a continuation of an existing policy preceding the emergency
proclamation in 1971.
Regarding Remark V in the policy, the petitioners argued that it would decrease circulation instead of boosting it. They claimed that
the government’s newsprint policy did not align with clause 5(1) of the Import Control Order 1955, rendering it invalid.
The petitioners further contended that treating large English dailies, distinct in their class, on par with smaller dailies requiring fewer
than 10 pages, amounted to an inequitable distribution and unreasonable treatment of dailies.
According to the petitioners in Bennett Coleman vs. Union of India, quotas were not granted based on actual circulation but on
notional circulation, implying the circulation of 1961-62 with permissible increases year after year, irrespective of whether the actual
circulation matched the permissible circulation on which the quota was annually based.
They asserted that common ownership units were unable to modify the newsprint quota due to the prohibition in Remark VIII of the
Newsprint Policy. The policy prohibited the use of the newsprint quota of one newspaper owned by a common ownership unit for
another newspaper owned by the same unit, a restriction absent in previous iterations.

Respondent’s Arguments
The Additional Solicitor General in Bennett Coleman Case presented two demurrers. Firstly, it was asserted that as corporations, the
petitioners lacked the standing to invoke fundamental rights. Secondly, it was contended that Article 358 of the Constitution barred
the petitioners from challenging any violation of fundamental rights.
Article 358 was invoked to argue that the petitioners were precluded from contesting the 1972–1973 newsprint policy during the
declared state of emergency. The provision clarified that nothing in Article 19 would limit the state’s authority to enact laws or carry
out executive actions that it would otherwise be competent to do in the absence of the emergency proclamation.
The right to import and use newsprint, according to the Additional Solicitor General, was not a common law right but rather a
unique right protected by various statutes, including the Imports and Exports Act of 1947, the Imports Control Order of 1955, the
Essential Commodities Act of 1955 and the Newsprint Control Order of 1962. It was asserted that if the petitioners sought a
newsprint quota, they were obligated to adhere to the prescribed conditions. Additionally, it was stated that under Article 19(1), the
press did not hold a special fundamental right.
It was argued in Bennett Coleman Case that legislative measures were aimed at regulating the newspaper industry, citing precedents
such as Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors. and the Express Newspapers case.
The Additional Solicitor General contended that Article 19(1)(a) was not violated by the newsprint policy, putting forth the following
points:

 The right mentioned in Article 19(1)(a) was not directly and immediately addressed by the newsprint policy.
 The subject matter of the law, not its effect, determines whether it has been violated.
 If the primary goal of the impugned law or action is something other than freedom of speech and expression, Article 19(1)(a) is
not invoked, even if the right is incidentally restricted.
Emphasis was placed on the pith and substance of the Import Control Act to control imports and exports, with reference to the
decision in Abdul Aziz Amiudin v. State of Maharashtra, which extended the scope of import control to ensure proper utilisation
of goods at every relevant stage.
The respondents argued in Bennett Coleman vs Union of India that laws regulating press freedom, even directly, are permissible as
long as there is no infringement or denial of citizens’ fundamental rights. American decisions were cited to support the notion that
the right of the press to free expression encompasses all citizens speaking, publishing and printing in all languages.
It was contended that there should be no monopolisation of the market, whether by the government or private entities, to maintain
an unrestricted marketplace of ideas where truth prevails. The press, it was argued, is not endangered by any harm from
monopolistic combinations.
The respondent contended that there is unrestricted use of any form of paper as long as newspapers do not apply for newsprint,
establishing that there is no shortage of white printing paper.
The Additional Solicitor General argued that the commercial aspect of the press did not enjoy specific exemptions and any incidental
restriction on circulation would not harm press freedom of expression.

Judgement in Bennett Coleman vs Union of India

In Bennett Coleman vs Union of India, Justice Ray delivered the court’s opinion. The court first addressed the preliminary question of
the petitions’ maintainability. It noted that companies did not bar the petitioners from seeking relief for the violation of the rights of
shareholders and editorial staff, who were also petitioners. Furthermore, the bar under Article 358 did not apply to laws enacted
before the proclamation of emergency. Therefore, the newsprint policy could be challenged as a continuation of the previous year’s
policy and relevant orders.
On the merits of the Bennett Coleman case, the court emphasised that freedom of the press was an essential element of Article 19(1)
(a) and the absence of an explicit mention of such freedoms as a special category was irrelevant. A free press was considered a
crucial component of freedom of expression in general. The court acknowledged that tackling a shortage of newsprint could be
achieved by fixing quotas. However, it deemed direct interference in terms of page limits and other regulations unjustified. Page
limits could lead to economic challenges for newspapers, affecting circulation and limiting freedom of expression.
The court in Bennett Coleman v Union of India highlighted that freedom of the press had both quantitative and qualitative elements.
Quantitative controls, such as those imposed by the Newsprint Policy of 1972-73, were viewed as restrictions on freedom of
expression. Since these controls were not justified by a shortage of newsprint, they were deemed unreasonable restrictions.
Consequently, the court held the Newsprint Policy of 1972-73 unconstitutional. However, it spared the Newsprint Order and Import
Control Order from being struck down, as they were not identified as the sources of these restrictions.
Justice Beg, concurring, pointed out that the Newsprint Policy of 1972-73 went beyond the scope of the Import Control Order, which
only allowed for fixing quotas and no further interference. Therefore, the question of whether the restrictions were reasonable did
not arise, as the government action lacked a legal basis.
Justice Mathew, in dissent, argued in Bennett Coleman vs Union of India that there was no direct regulation of content and a
restriction on the number of pages did not necessarily constitute an abridgment of freedom of expression. He contended that
controlling newsprint and regulating its distribution was necessary to ensure efficient utilisation and prevent a monopoly by a few
newspapers. In his view, the policy expanded, rather than abridged, freedom of speech and expression. He disagreed with the
majority judgment and held that the policy was not unconstitutional.