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Written Submition of Presentation on

Freedom of Speech and Expression under Article 19(1) (a)


As Interpreted By the Supreme Court in
Bennett Coleman & Co. and ors v. Union of India and ors.

:Presented By:
Mohit Jain
M.B.A.- M.B.L. Semester I
National Law University, Jodhpur.

:Submitted For Consideration To:


Prof. M.S.Rajpurohit
Faculty in Charge, Constitutional Governance
National Law University, Jodhpur.
:INTRODUCTION:

As a part of the continuous assessment requirements, I have been


assigned a task to present the famous newspaper’s case where the
supreme court of India through a bench of five learned judges viz. S.M.
Sikri C.J., K.K. Mathew, M.H. Beg, P.Jagmohan Reddy, and A.N. Ray J.J.
laid down a landmark judgment on the issue of Freedom of Speech and
Expression as granted by Article 19(1)(a) of the Constitution of India. The
case (Bennett Coleman & Co. and ors. V. Union of India & ors.) was
decided on October 30, 1972.

In the following paragraphs, I have made an honest attempt to offer


an explanation to the Freedom of Speech and Expression as granted by
Article 19(1)(a) of the Constitution of India and to correlate it with the
deliberations on it carried out by the respected judges while deciding the
case.

THE CRUX OF ARTICLE 19(1)(a)

The article is read as follows:


19. Protection of certain rights regarding freedom of speech,
etc.- (1) All citizens shall have the right-
(a) to freedom of speech and expression; ……

The article secures to EVERY CITIZEN freedom of speech and


expression. It means right to express one’s convictions and opinions
freely by words of mouth, writing, printing or any other communicable
mode. This freedom is the very basic feature of democracy as it allows
the exercise of appeal to reason which is a greatly attached attribute of
any democracy.

The Supreme Court of India, very early, in Romesh Thappar v.


State of Madras recognized the importance of this freedom and Patanjali
Sastri, C.J. observed as follows:
“Freedom of speech and of press lay at the foundation of all the
democratic organizations, for without free political discussion no public
education, so essential for the proper functioning of the process of
popular government, is possible”

REASONS FOR HAVING FREEDOM OF SPEECH AND


EXPRESSION

Following are the basic objects for having the freedom of speech
and expression granted by the constitution in any democracy:

1. This freedom helps an individual to attain self-fulfillment.


2. This freedom assists in discovery of truth.
3. It provides participation to general public in governance.
4. It maintains balance between social stability and social change.

WHAT IS INCLUDED IN FREEDOM OF SPEECH AND EXPRESSION

The article expressly mentions only a broad freedom and does not
define what all is included in such a broad phrasal expression. From the
various case laws decided on the topic, we can list out some of the
ingredients of the article as follows:

1. Expression of one’s own convictions and opinions.


2. Expression by words of mouth, writing, printing, painting and any
other communicable mode.
3. Right to know.
4. Right to propagate ideas of others. (Freedom of Press)
5. Freedom of circulation.

AVAILABLE TO WHOM

The article 19(1) secures those freedoms which are available to the
citizens of India only. This follows that a foreigner having no citizenship of
India can not claim right under the article.

Another point to be noted is also that only the natural persons are
considered to be citizens and by that virtue, juristic persons like
companies and corporations can not claim rights under this article even
though they may be registered in India and having a status of domestic
company or corporation.

But in Bank Nationalization case, it was well decided that though


the company can not claim right under this article, its shareholders are
not robbed of this right merely because of their being associated in to one
common object body. If any state action seek to affect any right of the
company under the article in a manner as to have impact on the rights of
the members, the members can claim such rights.

RESTRICTIONS

Article 19(2) provides that for the following circumstances, the right
under article 19(1)(a) shall not be deemed to have been infringed by any
act of the state:

1. In the interest of sovereignty and integrity of India.


2. For the security of the state.
3. Friendly relations with foreign state.
4. Public Order.
5. Decency or Morality.
6. Contempt of Court.
7. Defection.

These are those reasonable grounds upon which the freedom of


speech and expression may be restricted by the Government through
some law.

IMPORTANT EXTRACTS OF THE CASE

The case that I have to highlight here is Bennett Coleman & co. and
ors. v. Union of India and ors, which is famously known as the
newspaper’s case. The relevant citations are AIR (1973) SC 106 and
(1972) 2 SCC 788.

FACTS AND CONTENTIONS:

There was an Import Policy for newsprint for the year 1972-73
under which licenses were issued for 12 months. The policy contained 4
restrictions which were challenged to be violative of Article 19(1)(a) and
Article 14 of the Constitution of India. The restrictions were as follows:

1. No new newspaper or new edition of the existing newspaper could


be started by the ‘common ownership units’ during the period for
which policy was in force.

2. Ceiling limit on Maximum no. of pages in one newspaper was


restricted to 10.

3. No interchangeability between different newspapers or between


different editions of the same newspaper of the common ownership
units was allowed.

4. Allowance of increase in no. of pages up to 20% subject to


maximum of 10 pages was allowed to newspapers having less than 10
pages originally before coming into force of the policy.

It was highly contended that a big daily newspaper is prohibited


from increasing the no. of pages and thus right to freedom of speech and
expression is curtailed. The fourth restriction and the fact that these
restrictions were applicable only to common ownership units (units
owning more than one daily newspaper) and not to single ownership units
was seen as violative of Article 14 as no intelligible differentia could be
worked out for such classification.

Another important fact was that the policies of the previous years
did not contain any such restrictions and nor did they differentiate
between single and common ownership units. Thus the restrictions laid
down by the current policy were challenged as they were from the face of
them arbitrary, irrational and unreasonable.

The defendants contended that the policy was not violative of article
19(1)(a) as the restrictions did not directly and immediately affect the
freedom of speech and expression and the test according to the rule of
pith and substance should be the subject matter of the challenged law
and not the effect of the law. In the present case, the subject matter of
the policy is “rationing of important commodity and equitable circulation
of the newsprints” and the restrictions were said to be necessary to see
that the policy is properly implemented.

As against this the petitioners proposed very legibly responded that


the test of subject matter of the law and direct and immediate effect was
viable only in the cases of checking the legislative competence of the
challenged law but when it came to checking of the constitutionality of the
law due to its being restrictive of fundamental rights, the effect of the
challenged law was the only substantive test.

The other stand taken by the defendants was that the petitioners
were the corporations and not natural persons having citizenship of India
thus they were not the citizens of India and so they could not claim the
rights under Article 19. many examples of the decided American case
laws were set forward by the defendants in the support of this
contentions.

The petitioners took a strong stand of the decision in the Bank


Nationalization case where it was well decided that though the
corporations and other juristic persons can not claim rights under Article
19, its members or shareholders certainly could challenge any law that
had the effect of affecting the rights of the corporations in a manner as to
affect the rights of the shareholders also.

THE JUDGEMENT:

After much deliberation and many other points having been


discussed in much detail, the judges in majority held that the newsprint
policy under question was violative of Article 19(1)(a) as well as Article 14
therefore it was declared unconstitutional and hence was struck down.
The petitioners thus succeeded and the policy was stuck down.