DATE OF JUDGMENT 22/03/1972

BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

CITATION: 1973 AIR 460 1972 SCC (3) 418

ACT: Appreciation of Evidence-Principles Reversal of judgment of acquittal by High Court when justified-Indian Penal Code, s. 34, applicability of.

HELD: (i) Perhaps there is no uniform method of arriving at correct or at least satisfactory conclusions upon veracity of versions placed before the Court which can be applied to all cases. It may be possible to decide many cases by determining the main or crucial point on which the decision of the case one way or the other may turn. In other cases, where many disputable points are revolved, none of which is conclusive, a more elaborate and comprehensive treatment of the various points involved in the whole case may be necessary. Courts have, however, to attempt to, separate the “chaff from the grain” in every case. They cannot abandon this attempts on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot be reasonably carried out. [983 H-984B] Chet Ram v. State, [1971] 1 S.L.I.153, referred to.

(ii) In judging the credibility of aversion the Court must apply the standards of a reasonable and prudent man. [983 F]

(iii) In the present case the High Court had undoubtedly corrected the erroneous approach of the learned Sessions Judge by pointing out obvious answers to the points which the Sessions Judge seemed to regard as riddles incapable of solution. For example, the delay in lodging the First Information Report, although suspicious, could certainly be satisfactorily, explained by the fact that the stab would in the stomach of one of the victims was so serious that his statement could not be taken for several days afterwards. The absence of blood at, the place of occurrence was given undue importance by the trial court inasmuch ’as the blood might have got soaked in the clothes of the victims. Secondly after the occurence, a number of persons must have passed to and fro over the path, where the occurrence took place, before the arrival of the police next day. The principles laid down by this Court were applied by the High Court in dealing with the case and interference by this Court in respect of the appraisal of evidence by the High Court would not be justified. [984 P-G; 986 A-B] Khedu Mohton & Ors. v. State of Bihar, [1971] 1 S.C.R. 839 and Laxman Kalu Nikalje v. The State of Maharashtra, [1968] 3 S.C.R. 685, referred to.

(iv) The High Court however erred in applying s. 34 I.P.C. to the facts of the present case. Taking the totality of circumstances, particularly the nature of the injuries, the Diwali night, and the place of occurrence on a public thoroughfare into account, the pattern of the case was not that of a pre-plained attack. Mere carrying of spears which was not unusual for Sikhs would not establish pre-planning. The conviction of the appellants with reference to s. 34 must therefore be set aside. [987 D-G; 989 G-H]

JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165 of 1969. Appeal by special leave from the judgment and order dated April 15, 1969 of the Punjab and Haryana High Court in Criminal Appeal No. 876 of 1966. Nur-ud-din Ahmed and J. P. Aggarwal, for the appellants. V. C. Mahajan and R. N. Sachthey, for the respondents. The Judgment of the Court was delivered by Beg, J. Garib Singh, aged 36 years, Mohinder Singh, aged 15 years, Bhagat Singh, aged 25 years, Rain Singh, aged 65 years, Gurdial Singh, aged 66 years, were jointly charged and tried by the Additional Sessions Judge of Patiala for rioting and offences committed in the course of it. Garib Singh was charged separately under Sections 148 and 307 Indian Penal Code for an injury he was alleged to have given in the abdomen of Sarwan Singh (P.W. 7) with a Barchha, and for offences punishable under Sections 324 anti 323 Indian Penal Code with the aid of Section 149 Indian Penal Code. Mohinder Singh was separately charged under Sections 148 and 324 Indian Penal Code for inflicting an incised wound on Chanan Singh (P.W. 8) with a spear, and, under, Sections 307 and 323 read with Section 149 Indian Penal Code. Bhagat Singh was separately charged under Sections 147 and 323 Indian Penal Code for causing simple injuries with A lathi on Gurdev Singh (P.W. 9) and Ralla Singh (P.W. 10) and With the aid of Section 149 Indian Penal Code for offences punishable under Sections 307 and 324 Indian Penal Code. Ram Singh and Gurdial Singh, who were also said to have been members of’ an unlawful assembly which caused injuries to the party of the complainant Sarwan Singh at about sunset on 24-10- 1965, the date on which the festival of Diwali fell, were alleged to have only instigated their companions by, giving lalkaras and saying that Sarwan Singh should not be spared. They were, therefore, charged separately only under Section 147 Indian Penal Code and for offences under Sections 323, 324, and 307 Indian Penal Code with the help of Section 149 Indian Penal Code. None of the accused persons was, however, charged with any offence with the aid of Section 34 Indian Penal Code.

The learned Sessions’ Judge Who tried the accused persons had after elaborately examining the prosecution and defence versions, found the prosecution case to be “shroded in mystery as to how all the accused got together, armed variously in the house of Ram Singh and assaulted hi-in (i.e. Sarwan Singh) all of a sudden by darting out of the, house of Ram Singh”. The picture thus painted by the learned Sessions’ Judge to convince himself of the melodramatic artificiality of the prosecution version did not really accord with prosecution evidence which was that, when Sarwan Singh was passing in front of the house of Ram Singh, the accused came out and surrounded him, and that Sarwan Singh thereupon raised an alarm which brought the other injured witnesses, who had tried to salve him, to the scene. It was only when Ram Singh and Gurdial Singh gave, ’lalkaras’ or instigated the others to attack and not to spare Sarwan Singh that the assault was alleged to have begun. It is not unlikely that even this version did not bring out the whole truth.

The defence version, put forward through Kartar Singh (D.W. 2), was that, on the Diwali night of 24-10-1965, at about 8 p.m., one Gurdev Singh (P.W. 12) son of Mangal Singh, had come with Chanan Singh (P.W. 8) the injured and Ralla Singh (P W. 10) and Gurdev Singh Harijan and had a quarrel with Sarwan Singh (P.W. 7) injured, and with one Gurbux Singh (parentage not given) over the ownership of a tractor which was parked nearby. It was stated by Kartar Singh that both sides were drunk and that Gurdev Singh son of Mangal Singh had given a barchha blow to Sarwan Singh and Gurbux Singh had given a barchha blow to Chanan Singh. It was sought to be proved by the defence, through other witnesses, that, after this incident, there was a compromise between the two sides so that Gurdev Singh son of Mangal Singh, at the instance of Sarwan Singh, agreed to forego the unpaid price of the tractor, amounting to Rs. 5,000/-, and to patch up the quarrel. It was not even attempted to be explained by the defence version how an agreement could emerge so suddenly not only to patch up a quarrel in which a very serious injury was sustained by Sarwan Singh but also to involve accused persons in place of the actual assailants of Sarwan Singh and others. The suggestion, however was that the section case, according to which there was litigation between proses Singh and Bhagat Singh accused on one side and Sarwan Singh (P.W. 7) on the other, and the intervention of Chanan Singh (P.W. 8), who had his own scores to settle with Garib Singh, explained the implication of all .the accused persons. The learned Sessions’ Judge was, we find, ,more mystified by certain features in the prosecution’ case than impressed by I the very unnatural and incredible defence version. He had, therefore, acquitted all the accused persons for what he considered to. be. the weaknesses. of the prosecution case, but he had also mentioned the defence version as, though it could conceivably contain some truth. On an appeal filed by the State of Punjab, a Division Bench ’of the High Court listed and then examined each of the features of the evidence in the case which had baffled tie learned Sessions Judge. It then re-assessed the whole prosecution evidence itself. It came to the conclusion that the injured eye witnesses, namely, Sarwan Singh (P.W. 7), Chanan Singh’ (P.W. 8), Gurdev Singh .son of Sadda Ram (P.W. 9), Ralla Singh (P.W. 10) must be believed, at any rate with regard to the three accused persons, namely, Garib Singh, Mohinder Singh and Bhagat Singh, who were alleged to have actually caused injuries to them. It, therefore, convicted the three appellants before us by special leave by applying Section 34 I.P.C. Garib Singh was convicted under Section 307 I.P.C. separately, for the injury caused to Sarwan Singh (P.W. 7) and sentenced to five years rigorous imprisonment and he was also convicted and sentenced to one year’s rigorous imprisonment under Section 324/34 and to three months’ rigorous imprisonment under Section 323/34 I.P.C. Mohinder Singh was convicted separately and sentenced to one year’s rigorous imprisonment under Section 324 I.P C., to three years’ rigorous imprisonment under Section 307/34 Indian Penal Code, and to three months’ rigorous imprisonment under Section 323/34 I.P.C. Bhagat Singh was convicted separately and sentenced to three months’ rigorous imprisonment under Section 323 I.P.C., to five years’ rigorous imprisonment under Section 307/34 I.P.C. and to one year’s, rigorous imprisonment under Section 323/34 I.P.C. All the sentences were directed to run-concurrently. The High Court had stistained the acquittal of Ram Singh and Gurdial Singh for two reasons firstly, because the delay, in the making of the First Information Report, which was shown to have been lodged on the- next day i.e. to say 25-10-1965 at 11.30 a.m. at Police Station Ghanaur in’ District Patiala at a distance of only 1-1/2 miles from village Burki where the occurrence was shown to have taken placed and, secondly, because both Rain Singh and Gardial Singh “are said to have been empty handed at the time of the occurrence “and to neither of whom any injuries are attributed”. It may be recalled here, that these two accused persons were only said to have participated by giving lalkaras and saying that Sarwan Singh should not be spared., The High Court thought that this evidence of instigation was not enough to establish beyond reasonable ’doubt the participation’ of Ram Singh and Gurdial Singh in the assault which took place upon the injured persons. Such allegations of participation by giving lalkaras are sometimes made only to show additional overt acts so as to, take in at least “five persons arid make out the ingredients of an offence under Section 147 against all of them. When delayed lodging of the First Information Report indicated that deliberation and consultation for implication of some innocent persons with guilty ones was possible, this distinction made by the High Court could not be said to be unreasonable.

The High Court had, after examining the evidence of each of the defence witnesses, emphatically rejected the unnatural defence version as utterly unworthy of credence. It had rejected the testimony of Kartar Singh (D.W. 2), the only alleged eye witness of the defence version, on the ground that he stated that he had not, before he appeared to give evidence in the witness box on 7-4-1966, disclosed anything about the incident to anyone. It considered this statement of the Witness to be wholly unnatural. On examining the evidence of this witness, we find that he had also stated that he was not examined by the Police, and. presumably to explain this allegation, he had even stated that the Police had not come to the village. Furthermore, he had stated that Gurbux Singh (whose identity is uncertain, as there are more than one Gurbux Singh mentioned in the evidence on record, and, for all we know, there may be others with this name) had given a barchha blow to Chanan Singh on his umblicus which is quite absurd as there was no injury at all on the umblicus of Chanan Singh. The witness stated that, although Sarwan Singh, Chanan Singh, Ralla Singh, Gurdev Singh. were all armed with lathis no blow with lathis were given by them. His evidence does not explain the lathi injuries of any of the injured persons at all. His statement could not, therefore, be characterised as even an attempt to satisfactorily explain injuries. We have no doubt, after examining his evidence. that he could not be an eve witness of the occurrence at all. The remaining defence witnesses, Gurbux Singh (D.W. 1). Babu Singh (D W. 3). and Vishnu Sarut) (D W. 4), either made statements based on hear-say or attempted to prove the highly unnatural alleged agreement or compromise between Sarwan Singh whose condition, disclosed by medical evidence, was such that he could not be in ’a position to say much about anything for several days let alone enter into negotiations and compromise. We have, therefore, no doubt in our minds that the High Court was quite right in completely rejecting the defence Version which could not even pass muster as a possible explanation, for whatever it may be worth, as the learned Sessions Judge wrongly seemed to think that it could.

We have only disposed of the defence version first because the learned Counsel for the appellants, placed it in the forefront and tried to convince us that it was not as. incredible as the High Court thought it to be. Learned Counsel for the appellants asserted that truth is stranger than fiction. We think that, at any rate in appraising evidence led in law Courts, such an assumption would be extremely hazardous one to adopt. If it were adopted it would introduce an illegal criterion for appraising evidence. Section 3 of the Indian Evidence Act enables a Court to employ only the standards of a prudent man in judging what is to be deemed to be proved according to law. And, Section 114 of the Evidence Act enables Courts to presume only that which accords with the ordinary,. course of events and human nature and not what would be an aberration from such a course. Indeed, if such a principle was to be applied in judging some of the features of the prosecution case before us, which are assailed by the learned Counsel for the appellants, these features will appear to be more and not less credible. The degree which proof must reach before a Court trying a criminal case will convict is no doubt that which a prudent man will employ in reaching a conclusion beyond reasonable doubt whereas an accused need not prove his case to the same extent in order to succeed. But, the standards employed in judging each version are those of a reasonable and prudent man. Such a man can only adopt what is natural to expect and what accords with common sense and ordinary experience but not what is extraordinary and unexpected as a reliable test of credibility of witnesses.

The approach of the learned Sessions Judge to the whole case seems to us to have been affected by an overemphasis of minor points emerging from evidence in the case which were magnified into major defects of the prosecution case. Perhaps there is no uniform method of arriving at correct or at least satisfactory conclusions upon veracity of versions placed before the Court which can be applied to all cases. It may be possible to decide many cases by determining the main or crucial point on which the decision of the case one way or the other may turn. In other cases, where many disputable points,are involved none of which is conclusive, a more elaborate and comprehensive treatment of the various points involved in the, whole case may became necessary. Courts have however to attempt to separate the “chaff from the grain” in every case. They cannot abandon this attempt on the ground that: the case is baffling unless the evidence’ is really so confusing or conflicting that the process cannot be reasonably Carried out. The method to be employed in making this attempt was stated as follows by one of us (Beg, J.) in Chet Ram v. State(1);

” Courts, in search of the core of truth, have to beware of-being misled by half truths or Individually defective pieces of evidence. Firstly, undeniable facts and circumstances should be examined. Secondly, the pattern of the case thus revealed in the context of a whole sequence of proved facts, must be scrutinized to determine whether a natural, or probable and, therefore, a credible course of events is disclosed. Thirdly, the minutias of evidence, including established discrepancies, should be put in the crucible of the whole context of an alleged crime or occurrence and tested, particularly with reference to the proved circumstances which generally provide a more reliable indication of truth than the faulty human testimony’ so that the process of separating the grain from the chaff may take place. Fourthly, in arriving at an assessment of credibility of individual witnesses, regard must be had to the possible motives for either deliberate mendacity or subconscious bias. Lastly, the demeanour and bearing of a witness in Court should be carefully noticed and an appellate Court has had, in this respect, an advantage which it does not possess”.

It seems to us that the High Court had undoubtedly corrected erroneous approach of the learned Sessions Judge by pointing out obvious answers to the points which the learned Session, s Judge Seemed to regard as riddles incapable of solution. For example, the delay in lodging the First Information Report, although suspicious, could certainly be satisfactorily explained by the fact that the stab wound in Sarwan Singh’s stomach was so ,serious that his statement could not be taken for several days afterwards, Dr. Prem Nath (P.W. 1), who examined him at 5.25 a.m. on 25-10-1965 found that a small portion of the omen-turn was protruding from the wound, 5 c.m. X 3.5. c.m., and the injured was found in severe pain. The only other injury on his body was an abrasion I c.m. X I c.m. on the margin of the right ,elbow joint. Dr. H. M. Nahar (P.W. 2), stated that the injured Temained under the effect of morphine sulphate upto 26.10-1965, (1) [1971] (1) Simla Law Joal p. 153 @ p. 157. after which his condition improved- The abdominal injury was considered by the Doctor to be dangerous to life. Another injured person Chanan Singh (P.W., 8)whose brother was said to have filed a Civil suit against Nand Singh, the, father. of Garib ’Singh appellant, and Jaimal Singh, brother of Gurdial accused, was not shown to be connected with Sarwan Singh, Indeed, as already mentioned above, the suggestion of the defence was- that he had come to the scene with persons opposed to Sarwan Singh. He had an oblique incised penetrating wound 1 1/2 ” * 3/4 ” X 4″ on the right side of his chest and a swelling on the left, elbow. Just as Sarwan Singh was taken in a cart to Patiala after the occurrence, he had been taken to Rajpura alongwith Rallar singh (P.W. 10) who had received three simple injuries with blunt weapon. Gurdev Singh (P.W. 9), who had received two contusion and a faint contusion with blunt weapons had also gone with Chanan Singh and Ralla Singh to Rajpura, where they were all medically examined. It, therefore, appears that the injured were, quite naturally, more concerned with getting their injuries attended to than with lodging a report immediately at the nearest Police Station. The High Court had in these circumstances, not given undue importance to the delay in the lodging of a First Information Report on 25-10-1965 signed by Chanan Singh.

The learned Sessions Judge had used another fact against the prosecution without looking at the obviously. good answer to it foundin the evidence. This fact was that, on: 1 25-130-1965 at 8.30 a.m. Head Constable Kartar Singh (P.W. 14) had been giventhe injury reports and the First Information Report signed by Chanan Singh, when Gurdev Singh met him but did not tell him that he had himself witnessed the occurrence. Kartar Singh (P.W. 14), had said that he had waited-to ascertain facts from Chanan Singh himself, who was lying injured in a hospital at Rajpura, before sending the First Information Report to the Police State so that the case may be registered. In these circumstances, we, think that the High Court was quite- right in not using some. delay in the lodging of the First Information Report,” in the same way as the learned Sessions Judge had done it. The High Court used it, no doubt, as one of the grounds, for finding’ allegations against the alleged instigators as possible exaggerations but it had not, doubted the bona fides of the whole prosecution case on this ground.

Another fact which had-impressed the trial court very much was the failure of the Police to find any, marks of- blood on the path in front of the house of Ram Singh where the occurrence was shown to, have taken place. It had to be remembered that there Were only two injuries one on the, body of Sarwan Singh and another on the body of Chanan Singh, which could bleed and that the blood would first get soaked in the clothes of the injured. Morer, by the time the police had come to the, spot next day quite a number of people and- vehicles may have passed to and fro over the path. After the occurrence, even during the preceding night, which was that of Diwali, a number of persons must have passed over the path. Hence the failure of the police to find any blood in front of the house of Ram Singh was also not so inexplicable as the learned Sessions Judge seems to have thou lit it to be.’ Another feature on which considerable emphasis was placed, in the course of arguments before us, was that Garib Singh appellant was alleged to have inflicted the most serious injury of all in this case, on the abdomen of Sarwan Singh, when this accused was an important witness of the case of Sarwan Singh against Ram Singh and Bhagat Singh who had challenged the adoption of Sarwan Singh. Garib Singh was said to be a witness of the adoption deed put forward by Sarwan Singh. It Was, therefore, Contended that Sarwan Singh would not have liked to displease Garib Singh. It was also urged that there was no, reason why Garib Singh should take it into his head to suddenly attack Sarwan Singh, whose alleged adoption deed had been witnessed by him. This may appear to be a somewhat peculiar feature in the case. But we have no evidence before us to show what Garib Singh was doing in the’ company of Ram Singh and Bhagat Singh. It is not inconceivable that either these two told him something to put him against Sarwan Singh, or, Sarwan Singh, finding him in the corn pany of his adversaries, had said something. Garib Singh, who denied participation in the occurrence, could not be expected to say What had incensed him. We think that the High Court had taken a correct and reasonable view in holding that, unless Garib Singh had actually caused the injury to Sarwan Singh, it would be most unnatural for Sarwan Singh, situated as he was in his litigation with Ram Singh and Bhagat Singh, to make such an allegation against Garib Singh. This inference was far more natural and reasonable than that Garib Singh was falsely implicated by all the witnesses simply to oblige Chanan Singh. An overall consideration of all the facts and circumstances in the case, the important features of which have been noticed by us, and a reading of the Judgments of the Sessions Judge as well as of the High Court have led us to the conclusion that, whatever error there was in the approach of the learned Sessions Judge in appraising the worth of the prosecution and defence versions, was rectified by the High Court. We are of opinion that those features of the case to which the learned, Sessions Judge had attached disproponate importance were put in their proper perspective by the High Court We, therefore, do not think that this is a fit case for interference by this Court in this appeal by special leave with the view of the High Court about the substantial truthfulness of the prosecution case and the utter incredibility of the defence version.

There is, however, one essential aspect of the case which seems to have escaped the attention of the High Court. It is that the whole pattern of the case indicates that there was very little likely hood of any pre-concert. The High Court had itself rejected the version that Ram Singh and Gurdial Singh had instigated and said that Sarwan Singh should not be spared. If this instigation was there and had been acted upon Sarwan Singh would have received many more injuries. The nature of the injuries, proved by the medical evidence, indicated unmistakably that the occurrence was a short and sudden affair. Such a short and sudden occurrence could take place on the evening of Diwali at a chance meeting when Sarwan Singh found Garib Singh in the company of his adversaries, Ram Singh and Bhagat Singh. It is possible that something was said to Garib Singh either by Sarwan Singh when he found him in, the company of his adversaries, or, before that, by Ram Singh and Bhagat Singh which impelled Garib Singh to attack Sarwan Singh., These, however, are matters of pure conjecture. Nevertheless, taking the totality of facts and circumstances particularly the nature of injuries, the Diwali night, and the place of occurrente on a public thoroughfare, into account, we are inclined to believe that the pattern of the case was not that of a pre-planned attack.

There was some force in the submission, which was noticed by the Sessions Judge, that a pre-planned attack was more likely to have taken place elsewhere and not on a public thoroughfare in front of the house of Ram Singh. The learned Counsel for the appellant also submitted that Ram Singh and his associates were not likely to know the time at which. Sarwan Singh would pass Ram Singh’s house that evening. The prosecution evidence is that Sarwan Singh was going to untie his cattle. It is possible that it was known in the village that Sarwan Singh passed the house of Ram Singh at that time every evening, but there was no evidence led to show that this was so and that, therefore, the accused were waiting for him to come. Mere carrying of spears which is not unusual for Sikhs, would not establish pre-planning.

A consideration of the above mentioned aspect, which was not discussed by the High Court, leads us to the conclusion that this was not a case in which Section 34 Indian Penal Code, for which there was not even a charge framed against the appellants, could be applied so unhesitatingly as the High Court had done. It would have been possible to apply it even though no, charge was framed for it if the evidence establishing it had been clear and free from doubt. We may also mention the two cases cited before us to contend that the High Court should not have interfered at all with the appraisal of evidence by the trial Court. These were : Khedu Mohton & Ors. v. State of Bihar(1), and Laxman Kalu Nikalje v. The State of Maharashtra (2 ) . In Khedu Mohton’s case(3), an appellate court had set aside the conviction of the accused persons on certain grounds including that the four eye witnesses of the alleged occurrence were unreliable because they were interested persons. The High Court had interfered with an acquittal by an appellate Court. This Court had said, with regard to the conclusion reached in that particular case by the acquitting Judge :

” Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evid ence on record is not sufficient to interfere with the order of acquittal”.

We think that the present case is distinguishable from that case in as much as the approach of the Trial Court, in the case before us, shows that it was misled by attaching undue importance to individual features of the case which had been viewed in their correct perspective by the High Court. The Trial Court had ignored the very important fact that it is contrary to the ordinary course of human nature for injured persons, without showing strong grounds for it, to omit the names of their actual assailants and to substitute wrong persons in their places. Implication of the innocent with guilty ones is more easily credible than a wholesale substitution, out of enmity, of the innocent for the actual assailants, Such quick substitution was not, for the reasons already mentioned, conceivable in the present case. As we have already indicated, the High Court, in the case before us, had coffected an error in the approach and in the reasoning of the Sessions Judge rather than upset the findings of the Sessions’ Judge or the credibility of witnessess at the trial. The trial Court had not held that the injured eye witnesses could not be believed. It had not weighed evidence so much as given a catalogue of reasons for suspecting the prosecution case without considering what could be said in Answer. Appraisement involves ,weighing of one set of facts or inferences from them against the opposite one fairly and reasonably.

(1) [1971] S.C.R. 839 @ 840-841.
(2) [1968] (3) S.C.R. 685.

In Laxman Kalu Nikalje’s case(1) it was laid down by Court at page 688
“We may say here that it is now the settled law that the powers of the High Court in an appeal against the acquittal are not different from the powers of the same court in hearing an appeal against a conviction. The High Court in dealing with such an appeal can go into all questions Of fact and law and reach its own conclusions on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts. Further the High Court in reversing the judgment of the Sessions Judge must pay due regard to all the reasons given by the Sessions Judge for disbelieving a particular witness and must attempt to dispel those reasons effectively before taking a contrary view of the matter. It may also be pointed out that an accused starts with a presumption of innocence when lie is put up; for trial and his acquittal in no sense weakens that presumption, and this presumption must also receive adequate consideration from the High Court.”
We think that the principles laid down above by this Court were applied by the High Court in dealing with the case before us. It had not set aside, as already indicated, the verdict of a Court of trial based upon the special advantage it derives from watching witnesses depose.

As we have already observed, we think that the High Court had erred in applying Section 34 Indian Penal Code to the facts and circumstances of the case before us. As we are satisfied that the occurrence which led to the prosecution of the appellants must have arisen out of a sudden quarrel over some exchange of words in circumstances which have not been brought out by the evidence in the case, we are unable to hold the appellants guilty of any offence with the aid of Section 34 Indian Penal Code. We, therefore, set aside the convictions and sentences of Garib Singh under Section 324/34 and 323/34 Indian Penal Code but we maintain his conviction under Section 307, and, in the special circumstances of this case, reduce his sentence to three years rigorous imprisonment from five years rigorous imprisonment. We also set aside the convictions and sentences of the appellant Bhagat Singh under Section 307/34 and 324/34 Indian Penal Code, but maintain his conviction under Section 323 indian Penal Code and sentence of three months rigorous imprisonment for that offence. As regards Mohinder Singh appellant, a youngster who was bound to have been misguided by the example of older people and against whom no previous conviction is disclosed, while setting aside his conviction and sentence under Section 307/34 and 323/34 Indian Penal Code, we maintain his conviction under Section 324, Indian Penal Code, but reduce his sentence under Section 324 India Penal Code to the period already undergone.
(1) [1968] 2 S. C. R. 685.
17-1061Sup Cl/72

This appeal is partly allowed to the extent indicated above.
G.C. Appeal allowed in part.

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BENCH: PALEKAR, D.G., SIKRI S.M. RAY, A.N. DUA, I.D. BEG, M. HAMEEDULLAH
DATE OF JUDGMENT: 3-October-1972
CITATION: 1973 AIR 947 1973 SCR (2) 541 1973 SCC (1) 20

CITATOR INFO : E 1974 SC 799 (13,22) D 1974 SC1039 (7,16) RF 1974 SC1999 (12) F 1974 SC2281 (4) F 1977 SC 608 (9) RF 1977 SC1926 (14) F 1978 SC 771 (23) RF 1978 SC1675 (241) E 1979 SC 916 (3,5,6,11,15,124) R 1979 SC1384 (26) R 1980 SC 898 (5,6,8,11,70,71,73,80,150,152, MV 1982 SC1325 (2) R 1983 SC 473 (16) RF 1983 SC1155 (3) F 1992 SC 395 (4,5)

ACT: Indian Penal Code S. 302–Validity–Provision for sentence of death whether violative of freedoms under Art. 19 Constitution of India–Whether suffers from excessive delegation–Whether violative of Art. 14 -Whether deprives accused of his life without any “procedure established by law” within meaning of Art 21.

HELD : (i) Articles 72(1)(c), and 134 of the Constitution and entries 1 and 2 in List III of the Seventh Schedule to the Constitution show that the Constitution makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve, and the like. But, more important than these pro, visions in the Constitution is Art 21, which. provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law.

In the face of these indications of constitutional postulates, it will be very difficult to hold that capital sentence was regarded per se as unreasonable or not in the public interest.

In the context of our Criminal law, which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. Proposals for its abolition have not been accepted by Parliament. In this state of affairs, it cannot be said that capital punishment, as such, is either unreasonable or not in public interest.

[549C-F; 552B] (ii) In India, the onerous duty of passing the death sentence is cast on Judges, and, for more than a century judges have been carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the Criminal law as administered in India’ which invests the judges with a very wide discretion in the 542 matter of fixing the degree of punishment. That discretion in the matter of sentence is liable to be corrected by superior Courts. The exercise of judicial discretion on well recognised principles is, in the final analysis, the safest possible safeguard for the accused. [559B] (iii) Crime as crime may appear to be superficially the same, but the facts and circumstances ofa crime are widely different, and, since a decision of the court as regards punishment is dependent upon a consideration of all the facts and circumstances, there is hardly any ground. for a challenge under Art. 14. [559G] (iv) The accused in a trial for murder has opportunities at various stages of the trial to bring on record facts and circumstances that would justify, on conviction, the lesser penalty of life imprisonment. There is also nothing in the Criminal Procedure Code which prevents additional evidence being taken. It is, however, not the experience of criminal courts in India that the accused with a view to obtaining a reduced sentence, ever offers to call additional evidence.

[561B] It is necessary to emphasize that the court is principally concerned with facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr.P.C. The trial does not come to an end unlit all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what, section 306(2) and 309(2) Cr.P.C. purport to provide for. These provisions are part of the procedure established by law, and, unless it is shown that they are invalid for any other reason, they must be regarded as valid. No reasons were offered to show that they are constitutionallyinvalid, and hence, the death sentence imposed after trial in accordance with the procedure established. by law is not unconstitutional under Art. 21. [561C] Ram Narain and others v. The State of U. P. 1971 S.C. 757, State of Madras v. V. G. Row [1952] S.C.R. 597, Furman v.State of Georgia, (Nos. 69-5003, 69-5030 and 69-5031 decided on June 29, 1972), Municipal Committee v. Baisakhi Rain, Crl. Law Journal 475, Mccautha v. California, United States Supreme Court Reports Lawyears’ Edition, 28, 713 and budhan Ckoudhry and others v. The State Bihar, [1955] S.C.R. 1045, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 173 of 1971.

Appeal, by special leave from the judgment and order dated February 26, 1971 of the Allahabad High Court at Allahabad in Criminal Appeal No. 1229 of 1970 and Reference No. 96 of 1970.

R. K. Garg, A. K. Gupta, Indira Jai Singh, V. J. Francis and R. S. Sharma for the appellant.

O. P. Rana for the respondent.

A. V. Rangam and A. Subhashini for the State of Tamil Nadu.

R. N. Bagra and M. Veerappa for the State of Mysore., 543 F. S. Nariman, Additional Solicitor General of India, P. Parameshwara Rao and B. D. Sharma for the Attorney General.

Bakshi Sita Ram and R. N. Sachthey for the Advocate General, Himachal Pradesh.

A. K. Gupta for intervener (Shyam Narain).

R. K. Jain and R. K. Garg for Interveners (Duraipandi Thevar and Krishna Thevar).

The Judgment of the Court was delivered by PALEKAR, J. The appellant Jagmohan Singh has been convinced under section 302-IPC for the murder of one Chhotey Singh and sentenced to death by the learned Sessions Judge, Shahjahanpur. The conviction and the sentence are confirmed by the Allahabad High Court. on the appellant coming to this Court by special leave, special leave was granted limited to the question of sentence only.

The short facts of the case are that some six or seven years before the present offence, one Shivraj Singh, father of Jagbir Singh, a cousin of the appellant, was murdered. The deceased Chhotey Singh was charged for that murder but was eventually acquitted by the High Court. As a result of that murder, there was ill-feeling between Chhotey Singh, on the one hand, and the appellant and Jagbir Singh, on the other.

Both of them were minors at the time of the murder of Shivraj Singh. But by now they had grown up and it is plain from the evidence that Chhotey Singh’s murder was the result of this ill-feeling. Chhotey Singh was murdered on September 10, 1969 at about 5.00 P.M. A day earlier, there was a quarrel between Jagmohan Singh and Jagbir Singh, on the one hand, and Chhotey Singh, on the other, on the question of a right to irrigate their fields. However, the dispute was settled by persons who reached the spot at the time and nothing untoward happened. Next day, however, the appellant armed with a country made pistol and Jagbir Singh armed with a lathi concealed themselves in a bajra field and emerged from the same as Chhotey Singh passed by to go to his field for fetching fodder. The appellant asked Chhotey Singh to stop so that the matter between them could be settled once for all. Naturally Chhotey Singh tried to run away but he was chased by the appellant and shot in the back. Chhotey Singh fell down after running some distance and died. That is how the murder was committed.

On the facts and circumstances of the case, the learned Sessions Judge held that the appellant deserved the extreme penalty. The High Court, while confirming the death sentence, observed 544 that there were no extenuating circumstances and the sentence of death awarded to the appellant was just and proper. The question is whether this Court should interfere with the sentence.

Under section 367(5) of the Criminal Procedure Code as it stood before its amendment by Act 26 of 1955 the normal rule was to sentence the accused to death on a conviction for murder and to impose the lesser sentence of imprisonment for life for reasons to be recorded in writing. That provision is now deleted and it is left to the judicial discretion of the court whether the death sentence or the lesser sentence should be imposed. That discretion has been exercised concurrently by the Trial Court and the High Court and the question is whether there are sufficient reasons for this court to interfere with that discretion. As pointed out by this Court in Ram Narain and others v. The State of U.P.(1) this Court normally does not interfere with the discretion exercised by the High Court on the question of sentence unless the High Court has disregarded recognised principles in imposing the sentence and there has been a failure of justice. It. cannot be said on the facts of this case that there has been any breach of the principles governing the matter of sentence. The appellant had armed himself with a gun and was lying in wait for the victim to pass. There was no immediate cause. The murder was entirely motivated by ill-feelings nurtured for years. The offence was premeditated. On seeing the appellant, Chhotey Singh started running away, but he was chased and done to death. In these circumstances, it can hardly be said that the High Court did not exercise its discretion properly. We are, therefore, not inclined to interfere with the sentence imposed by the High Court.

Mr. Garg appearing on behalf of the appellant however, raised the question of constitutional impermissibility of the death sentence for murder, and we have to deal with the question at some length. In the first place he contended, the death sentence puts an end to all fundamental rights guaranteed under clauses (a) to (g) of sub-clause (1) of Article 19 and, therefore, the law with regard to capital sentence is unreasonable and not in the interest of the general public. Secondly,, he contended, the discretion invested in the Judges to impose capital punishment is not based on any standards or policy required by the Legislature for imposing capital punishment in preference to imprisonment for, life. In his submission, this was a stark abdication of essentials legislative function, and, therefore, section 302-IPC is vitiated by the vice of excessive delegation of essential legislative function.

Thirdly, he contended, the uncontrolled and unguided discretion in the Judges to impose capital punishment or imprisonment for life is hit by Article 14 of the Constitution because two persons 545 found guilty of murder on similar facts are liable to be treated differently–one forfeiting his life and the other suffering merely a sentence of life imprisonment. Lastly it was contended that the provisions of the law do not provide a procedure for trial of factors and circumstances crucial for making the choice between the capital penalty and imprisonment for life. The trial under the Criminal Procedure Code is limited to the question of guilt. In the absence of any procedure established by law in the matter of sentence, the protection given by Article 21 of the Constitution was violated and hence for that reason also the sentence of death is unconstitutional.

The first submission is based on the provisions of Article 19 of the Constitution. That Article does not directly deal with the freedom to live. It deals with 7 freedoms like freedom of speech ,and expression, freedom to assemble peaceably and without arms etc., but not directly with the freedom to live. It is, however, contended that freedom to live is basic to all the several freedoms and since the enjoyment of those seven freedoms is impossible without conceding freedom to live, the latter cannot be denied by any land unless such law is reasonable and is required in general public interest. It was, therefore, contended that, unless it was shown that the sentence ‘of death for murder passed the test of reasonableness and general public interest, it would not be a valid law.

We will assume for the purposes of the present argument that the right to live is basic to the freedoms mentioned in Article 19 and that no law can deprive the life of a citizen unless it is reasonable and in the public interest. The question, therefore, for our consideration is whether the law, namely, section 302-IPC which prescribes the sentence of death for murder passes the above test.

In this connection it would be proper to recall the observations of Patanjali Sastri, CJ in State of Madras v.

V. G. Row(1) at page 607 : “It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern, of reasonableness can be laid down as applicable to all cases.

The nature of the right alleged to have been infringed the underlying purpose of the restrictions imposed. the extent and urgency of the evil sought to be remedied thereby. the disproportion of the imposition, the prevailing conditions at the time. should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it (1) [1952] S.C.R. 597.

546 is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.” The responsibility of Judges in that reject is the greater, since the question as to whether capital sentence for murder is appropriate in modern times has raised serious controversy the world over, sometimes, with emotional overtones. It is, therefore, essential that we approach this constitutional question with objectivity and a proper measure of self restraint.

The arguments advanced by Mr. Garg against death penalty per se were practically similar to those which were addressed recently to the Supreme Court of America in the case of Furman v. State of Georgia (Nos. 69-5003, 619-5030 and 695031 decided on June 29, 1972) and obtained the assent of two Judges, Mr. Justice Brennan and Mr. Justice Marshall.

In that case the Judges were invited to reject capital punishment on the ground that it violated the Eighth Amendment which forbade “cruel and unusual punishments”.

Brennan, J. accepted the validity of the challenge in these words :

“If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary justice and if there is no reason to believe that it serves any judicial purpose more effectively than some less severe punishment, then the due infliction of that punishment violates the command of the clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.” Marshall, J. observed as follows “There is but one conclusion that can be drawn from all of this-i.e., the death penalty is an excessive and unnecessary, punishment which violates the Eighth Amendment. The statistical evidence is not convincing beyond all doubt, but, it is persuasive. It is not improper at this point to take judicial notice of the fact that for more than 200 years men have labored to demonstrate that capital punishment serves no purpose that life imprisonment could not serve equally as well.

And they have done so with great success.

Little if 547 any evidence had been adduced to prove the contrary. The point has now been reached at which deference to the legislatures is tantamount to abdication of our judicial roles as factfinders, judges, and ultimate arbiters of the constitution. We know that at some point the presumption of constitutionality accorded legislative acts gives way to a realistic assessment of those acts. This point comes when there is sufficient evidence available so that Judges can determine not whether the legislature acted wisely, but whether it had any rational basis whatsoever for acting. We have this evidence before us now. There is no rational basis for concluding that capital punishment is not excessive. It therefore violates the Eighth Amendment.” In another place he observed “I believe that the great mass of citizens would conclude on the basis of the material already considered that the death penalty is immoral and therefore unconstitutional.” The arguments advanced by Mr. Garg were intended to persuade us to come to the above conclusion on the abstract question as to whether death penalty for murder was constitutionally permissible.

It is, however, to be noted in the above case of Furman v. State of Georgia that though the learned Judges by a majority of 5 to 4 set aside the sentences of death with which they were concerned, it was only Brennan and Marshall, JJ. who were prepared to outlaw capital punishment on the ground that it was an anachronism, degrading to human dignity and unnecessary in modern life. The other three Judges namely Mr. Justice Douglas, Mr. Justice Stewart and Mr. Justice White who formed the majority along with Brennan and Marshall, JJ. did not take the view that the Eighth Amendment prohibited capital punishment for all crimes and under all circumstances. Mr. Justice Douglas, indeed held, that the death penalty contravened the Eighth Amendment.

But his judgment is not capable of being read as requiring the final abolition of capital punishment. Mr. Justice Stewart and Mr. Justice White merely concluded that the death sentence before them must be set aside because prevailing sentencing practices did not comply with the Eighth Amendment. The minority of four Judges (Burger, CJ, Blackmun, Powell and Rehnquist JJs) held that death penalty did not contravene the Eighth Amendment. Mr. Justice Douglas in reversing the death sentence was of the view that “the Eighth Amendment required legislatures to write penal laws that are even handed, nonselective, and non arbitrary, and to require judges to see to it that gene548 ral laws are not applied sparsely, selectively, and spottily to unpopular groups.” As is clear from his judgment Douglas, J was very much exercised by the fact that the law with regard to death penalty was being enforced in a discriminatory manner the victim being mostly the poor and the despised, especially, if he was a member of a suspect or unpopular minority-obviously meaning the Negros. At the end of the judgment, however, he made it clear that he was not considering in that case whether mandatory death penalty would be constitutional if it was enforced evenhandedly and in nondiscriminatory manner. Mr. Justice Stewart after noting that at least two of his brothers (Brennan and Marshall, JJ) had concluded that the infliction of the death penalty is constitutionally impermissible in all circumstances under the Eighth and Fourteenth Amendments stated “their case is a strong one. But I find it unnecessary to reach the ultimate question they would decide”. At a later stage he made it clear that “the constitutionality of capital punishment in the abstract is not, however, before us in these cases.” Mr. Justice White started his opinion : “In joining the court’s judgment, therefore, I do not at all intimate that the death penalty is unconstitutional per se or that there is no system of capital punishment that would comport with the Eighth Amendment. That question, ably argued by several of my Brethren, is not presented by these cases and need not be decided.” It will thus be seen that although the death Sentences in that case were set aside by a majority, three out of five Judges who formed the majority did not consider it necessary to outlaw capital punishment on the social and moral considerations which prevailed upon the other two Judges namely Brerman and Marshall, JJ. In short, even when the court was presented with a wealth of evidence compiled by Sociologists and research workers in refutation of the necessity of retaining capital punishment, only two Judges out of nine could be persuaded to hold that capital punishment per se is constitutionally impermissible.

So far as we are concerned in this country, we do not have, in our constitution any provision like the Eighth Amendment nor are we at liberty to apply the test of reasonableness with the freedom with which the Judges of the Supreme Court of America are accustomed to apply “the due process” clause.

Indeed what is cruel and unusual may, in conceivable circumstances, be regarded as unreasonable. But when we are dealing with punishments for crimes as prescribed by law we are confronted with a serious problem. Not a few are found to hold that life imprisonment. especially., as it is understood in U.S.A. is cruel. On the other hand, capital punishment cannot be described as unusual because that kind of punishment has been with us from ancient times right 549 upto the present day though the number of offences for which it can be imposed has continuously dwindled. The framers of our Constitution were well aware of the existence of capital punishment as a permissible punishment under the law. For example,. ,Article 72 (1) (c) provides that the President shall have power to rant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence “in all cases where the sentence is a sentence of death”. Article 72(3) further provides that “Nothing in subclause (c) of clause (1) shall affect the power to suspend, remind commute a sentence of death exercisable by the Governor of a State under any law for the time being in force.” The obvious reference is to sections 401 and 402 of the Criminal Procedure Code. Then again entries 1 and 2 in List III of the Seventh Schedule refer to criminal law and criminal procedure. In entry no. 1 the entry Criminal Law is extended by specifically including therein “all matters included in the Indian Penal Code at the commencement of this Constitution”. All matters not only referred to offences but also punishments–one of which is the death sentence. Article 134 gives a right of appeal to the Supreme Court where the High Court reverses an order of acquittal and sentences a person to death. All these provisions clearly go to show that the Constitution-makers had recognised the death sentence as a permissible punishment and had made constitutional provisions for appeal, reprieve and the like. But more important than these provisions in the Constitution is Article 21 which provides that no person shall be deprived of his life except according to procedure established by law. The implication is very clear. Deprivation of life is constitutionally permissible if that is done according to procedure established by law. In the face of these indications of constitutional postulates it will be very difficult to hold that capital sentence was regarded per se as unreasonable or not in the public interest.

Reference was made by Mr. Garg to several studies made by Western scholars to show the ineffectiveness of capital punishment either as a deterrent or as appropriate retribution. There is large Volume of evidence compiled in the West by kindly social reformers and research workers to confound those who want to retain the capital punishment.

The controversy is not yet ended and experiments are made by suspending the death sentence where possible in order to see its affect. On the other hand most of these studies suffer from one grave defect namely that they consider all murders as stereotypes, the result of sudden passion or the like, disregarding motivation in each individual case. A large number of murders is undoubtedly of the common type. But some at least are diabolical in conception and cruel in execution. In some others where the victim is a person of high 550 standing in the country Society is liable to be rocked to its very foundation. Such murders cannot be simply wished away by finding alibis in the social maladjustment of the murderer. Prevalence of such crimes speaks, in the opinion of many, for the inevitability of death penalty not only by way of deterrence but as a token of emphatic disapproval by the society.

We have grave doubts about the expediency of transplanting Western experience in our country. Social conditions are different and so also the general intellectual level In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a. dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty. We have not been referred to any large scale studies of crime statistics compiled in this country with the object of estimating the need of protection of the society against murders. The only authoritative study is that of the Law Commission of India published in 1967. It is its Thirty-Fifth Report. After collecting as much available material as possible and assessing the views expressed in the West both by abolitionists and the retentionists the Law Commission has come to its conclusion at paras 262 to 264. These paragraphs are summarized by the Commission as follows at page 354 of the Report “The issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human beings must be borne in mind.

It is difficult to rule out the validity, of, or the strength behind, many of the arguments for abolition nor does, the Commission treat lightly the argument based on the irrevocability of the sentence of death, the need for a modern approach, the severity of capital punishment, and the strong feeling shown by certain sections of public opinion in stressing deeper questions of human values.

Having regard, however, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present ‘juncture, India cannot’ risk the experiment of abolition ;of capital punishment.

551 Arguments which would be valid in respect of one area of the world may not hold good in respect of another area, in this context.

Similarly, even if abolition in some parts of India may not make a material difference, it may be fraught with serious consequences in other parts.

On a consideration of all the issues involved, the Commission is of the opinion, that capital punishment should be retained in the present state of the country.” A very responsible body has come to the above conclusion, after considering all the relevant factors. On the conclusions. thus offered to us, it will be difficult to hold that capital punishment as such is unreasonable or not required in the public interest.

In dealing with the question of reasonableness, we cannot ignore the procedural safeguards provided by the statute.

An accused charged for murder is first put up before a Magistrate, who on an examination of the evidence commits him to the Court of Sessions for trial. The accused knows at this stage what is, the evidence against him. The trial is conducted before a Sessions Judge or an Additional Sessions Judge with considerable experience in the trial of criminal cases. if the Sessions Judge, after trial, comes to the conclusion that the accused is guilty of murder and deserves to be sentenced to death, he is required under section 374 of the Criminal Procedure Code to submit to, the High Court the proceedings before him and it is the High Court which has to review the whole evidence and consider whether the sentence of death passed by the Sessions Judge should be confirmed. The rule under section 378 is that this review of the evidence shall be made by a bench of not less than two Judges. If the sentence of death is confirmed, the accused can in appropriate cases appeal to the Supreme Court by special leave. In cases where the Sessions Judge acquits the accused of murder but the High Court in appeal sets aside the acquittal and sentences him to death, the accused is entitled under the Constitution to prefer an appeal as of right to this Court. It will be thus seen that there are inbuilt procedural safeguards against any hasty decision.

As is well known, the subject of capital punishment is a difficult and controversal subject, long and hotly debated.

It has evoked strong views. In that state of affairs if the Legislature decides to retain capital punishment for murder, it will be difficult for this Court in the absence of objective evidence regarding its unreasonableness to question the wisdom and propriety of the Legislature in retaining it. A Bill for the abolition of capital 552 punishment was introduced in the Lok Sabha in 1956 but the same was rejected on November 23, 1956. Similarly a resolution for the abolition of capital punishment was introduced in the Rajya Sabha in 1958 but the same was withdrawn after debate. Later in 1961 a similar resolution was moved in the Rajya Sabha but the same was negatived in 1962. A resolution for its abolition was discussed in the Lok Sabha but the same was withdrawn after discussion. All this goes to show that the representatives of the people do not welcome the prospect of abolishing capital punishment. In this state of affairs, we are not prepared to conclude that capital punishment, as such, is either unreasonable or not in the public interest.

The next contention of Mr. Garg was that by providing in section 302-IPC that one found guilty thereunder is liable to be punished either with death sentence or imprisonment for life, the legislature has abdicated its essential function is not providing by legislative standards in what cases the Judge should sentence the accused to death and in what cases he should sentence him only to life imprisonment.

It may be noted here that prior to the Amending Act 26 of 1956, section 367(5) of the Criminal Procedure Code read as follows :

“If the accused is convicted of an offence punishable with death and the court’s sentences him to any punishment other than death, the court shall in its judgment state the reason why sentence of death was not passed.” By the amendment this provision is deleted and, as the Code at present stands, punishment for murder is one of the two–namely death or imprisonment for life. Neither section 302-IPC nor any other provision in the Criminal Procedure Code says in what cases the capital punishment is to be imposed and in what others the lesser punishment. It is, therefore, argued by Mr. Garg that the Legislature has left this awful duty to the Judge or Judges concerned without laying down any standards to guide them in their decision.

In fact he says the Legislature has abdicated its legislative function and this delegation of its power to the Judges is vitiated by the vice of excessive delegation. We think there is no merit in this submission. In this connection we have to take note of the policy of the law with regard to crimes and their punishments. The position in England is stated by Halsbury in Laws of England, Third Edition, Volume 10 at page 486. The relevant portion of para 888 is as follows :

“DISCRETION OF COURT AS TO Punishment In all crimes except those for which the sentence of death must be pronounced a very wide discretion in the 553 matter of fixing the degree of punishment is allowed to the Judge who tries the case.

The policy of the law is, as regards most crimes, to fix a maximum penalty, which is intended only for the worst cases, and to leave to the discretion of the judge the determination of the extent to which in a particular case the punishment awarded should approach to or recede from the maximum limit.

The exercise of this discretion is a matter of prudence and not of law, but art appeal lies by the leave of the Court of Criminal Appeal against an sentence not fixed by law, and if leave is given, the sentence can be altered by that court. Minimum penalties have in some instances been prescribed by the enactment creating the offence.” The position in India is practically the same. The exception made in English Law with regard to the sentence of death does not hold good in India. The policy of our criminal law As regards all crimes, including the crime of murder, is to fix a maximum penalty-the same being intended for the worst cases, leaving a very wide discretion in the matter of punishment to the Judge. In England, murder and treason were offences for which the death sentence was mandatory. If after trial the accused was found guilty by the Jury, neither the Jury nor the Judge had any discretion in the matter of sentence. The Judge had to sentence the accused to death. The sentence may be reprieved by the Home Secretary after-taking all the circumstances of the case and other matters into consideration. But that was no part of the judicial process.

Absence of any discretion with regard to the sentence raised strong criticism in England because it was recognised, as was done in many other countries, that death penalty was not the only appropriate punishment for murder. A Royal Commission was thereupon appointed in 1949 to consider and report whether liability under the Criminal Law in Great Britain, to suffer capital punishment for murder should be limited or modified and if so to what extent and by what means. In its report published in 1953 the Commission found it impossible to improve the position either by redefining murder or by dividing murder into degrees. In para 535 of the Report it pointed out that “the general liability under the existing law to suffer capital punishment for murder cannot be satisfactorily limited by such means, (i.e. redefining murder or dividing murder into degrees) because no legal definition can cover all the multifarious considerations, relating to the offender as well as to his crime, which ought to be taken into account in deciding whether the supreme penalty should be exacted in each individual case.” Ile Commission considered various 554 alternatives-one of them being a provision on the lines of section 302-IPC which was pressed with great force, by Sir John Beaumont a former Chief Justice of the Bombay High Court, and later a Privy Councillor. He pressed on the Commission the advisability of leaving it to the Judge whether the death sentence should be imposed or the lesser sentence, adding further that this procedure had worked quite well in India for generations and there was no reluctance on the part of the Judges to assume the responsibility to pass the death sentence. The Judges in England, however unanimously refused to accept such a responsibility. The question then arose whether the responsibility for the death sentence may be given to the Jury as was done in some of the States in America. The Royal Commission fell in with this suggestion and ex pressed itself as follows (See para 595 of the Report).

“It is not questioned that the liability to suffer capital punishment under the existing law is rigorous to excess. We cannot but regard it as a reproach to our criminal law that this excessive rigour should be tolerated merely because it is corrected by executive action. The law itself should mitigate it.

We have been forced to the conclusion that this cannot be done by a redefinition of murder or by dividing murder into degrees. No formula is possible that would provide a reasonable criterion for the infinite variety of circumstances that may affect the gravity of the crime of murder. Discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. This conclusion is borne out by American experience : there the experiment of degrees of murder, introduced long ago, has had to be supplemented by giving to the courts a discretion that in effect supersedes it.

Such a discretion, if it is to be part of the legal process, and not an act of executive clemency, must be given either to the Judge or to the jury. We find that the Judges ‘in this country, for reasons we respect, would be most reluctant to assume this duty. There remains the method of entrusting it to the jury. We are satisfied that as long as capital punishment is retained this is the only practicable way of correcting the outstanding defects of the existing law.” In India the difficulty encountered by the Commission had been overcome long ago and it is accepted by the public that only the Judges shall decide the sentence. Where an error is committed in the matter of sentence the same is liable to be corrected by appeals and revisions to higher courts for which appropriate pro555 vision was made in the Criminal Procedure Code. The structure of our criminal law which is principally contained in the Indian Penal Code and the Criminal Procedure Code underlines the policy that when the Legislature has defined an offence with sufficient clarity and prescribed the maximum punishment therefore, a wide discretion in the matter of fixing the degree of punishment should be allowed to the Judge. As pointed out by Ratanlal in his Law of Crimes, Twenty-Second Edition page 93 “The authors of the Code had,, in’ many cases not heinous, fixed a minimum as well as a maximum punishment. The Committee were of opinion that, considering the general terms in which offences were defined, it would be inexpedient, in most cases, to fix a minimum punishment; and they had accordingly so altered the Code as to leave the minimum punishment for all offences, except those of the gravest nature, to the discretion of the Judge who would have the means in each case of forming an opinion as to the character of the offender, and the circumstances, whether aggravating or mitigating, under which the offence had been committed. But with respect to some heinous offence-such as offences against the State, murder, attempt to commit murder, and the like-they had thought it right to fix a minimum punishment”.

In the whole code there is only one section (Section ‘303) where death is prescribed as the only punishment for murder by a person under sentence for imprisonment for life.

There, are several other sections in which death sentence could be imposed, but that sentence is not mandatory. Under two sections namely section 302–murder, and section 121—waging-war against the Government of India, alternative punishments of death or imprisonment for life are leviable. These are the two sections where the maximum punishment is death and the minimum is imprisonment for life. There are two other sections in the Indian Penal Code where the minimum punishment is prescribed-one is section 397 which provides that if at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years and (2) Section 396 which provides that at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be published shall not be less than seven years. As regards the rest of the offences, even those cases where the maximum punishment is the death penalty, a wide discretion to punish is given to the Judge.

The reasons are explained by Ratanlal on the page referred to above.

“Circumstances which are properly and expressly recognized by the law as aggravations calling for in 18-L498SupCI/73 556 creased severity of punishment are principally such as consist in the manner in which the offence is perpetrated; whether it be by forcible or fraudulent means, or by aid of accomplices or in the malicious motive by which the offender was actuated, or the consequences to the public or to individual sufferers, or the special necessity which exists in particular cases for counteracting the temptation to offend, arising from the degree of expected gratification, or the facility of perpetration peculiar to the case.

These considerations naturally include a number of particulars, as of time, place, persons and things, varying according to the nature of the case. Circumstances which are to be considered in alleviation of punishment are : (1) the minority of the offender; (2) the old age of the offender; (3) the condition of the offender e.g., wife, apprentice; (4) the order of a superior military officer; (5) provocation; (6) when offence was committed under a combination of circumstances and influence of motives which are not likely to recur either with respect to the offender or to any other; (7) the state of health and the sex of the delinquent. Bentham mentions the following circumstances in mitigation of punishment which should be inflicted : (1) absence of bad intention; (2) provocation; (3) self preservation; (4) preservation of some near friends; (5) transgression of the limit of self-defence; (6) submission to the menaces; (7) submission to authority; (8) drunkenness; (9) childhood.” Indeed these are not the only aggravating or mitigating circumstances which should be considered when sentencing an offender. The list is not intended to be exhaustive. In fact the Punjab High Court has held that considerable delay in the disposal of a case may be a factor in awarding lesser punishment. See Municipal Committee v. Baisakhi Ram(1).

The policy of the law in giving a very wide discretion in the matter of punishment to the Judge has its origin in the impossibility of laying down standards. Take, for example, the offence of criminal breach of trust punishable under section 409–IPC, The maximum punishment prescribed for the offence is imprisonment for life. The minimum could be as low as one day’s imprisonment and fine. It is obvious that if any standards were to be laid down with regard to several kinds of breaches of trust by the persons referred in that section, that would be an impossible task. All that could be reasonably done by the Legislature is to tell the Judges that between the maximum and minimum Prescribed for an offence. they should, on balancing the aggravating and (1) Crl. Law journal 475.

557 mitigating circumstances as disclosed in the case, judicially decide what would be the appropriate sentence.

Take the other case of the offence of causing hurt.

Broadly, that offence is divided into two categories-simple hurt and grievous hurt. Simple hurt is again sub-divided simple hurt caused by a lethal weapon is made punishable by a higher maximum sentence-section 324. Where grievous hurt is caused by a lethal weapon, it is punishable under section 326 and is a more aggravated form of causing grievous hurt than the one punishable under section 325. Under section 326 the maximum punishment is imprisonment for life and the minimum can be one day’s imprisonment and fine. Where a person by a lethal weapon causes a slight fracture of one of the unimportant bones of the human body, he would be as much punishable under section 326-IPC as a person who with a knife scoops out the eyes of his victim. It will be absurd to say that both of them, because they are liable under the same section should be given the same punishment. Here too, any attempt to lay down standards why in one case there should be more punishment and in the other less punishment would be an impossible task. What is thus true with regard to punishment imposed for other offences of the code is equally true in the case of murder punishable under section 302-IPC. Two alternate sentences are provided one of which could be described as the maximum and the ether minimum.

The choice is between these two punishments and as in other cases the discretion is left to the Judge to decide upon the punishment in the same manner as it does in the case of other offences, namely, balancing the aggravating and mitigation circumstances. The framers of the Code attempted to confine the offence of murder within as narrow limits as it was possible for them to do in the circumstances. All culpable homicides were not made punishable under section 302-IPC. Culpable homicides were divided broadly into two classes (1) culpable homicide amounting to murder and (2) culpable homicide not amounting to murder. Culpable homicide which fell in the one or the other of the four strictly limited categories described in section 300-IPC amounted to murder unless it fell in one of the five exceptions mentioned in that section, in which case the offence of murder was reduced to culpable homicide not amounting to murder. Any further refinement in the definition of murder was not practicable and, therefore, not attempted. The recent experience of the Royal Commission referred to above only emphasizes the extreme difficulty.

The Commission frankly admitted that it was not possible to prescribe the lesser punishment of imprisonment for life by redefinition of murder or by dividing murder into degrees.

It conceded that no formula was possible that would provide a reasonable criterion for the infinite variety of circumstances, that may affect the gravity of the crime of murder that conclusion forced the Commission to the view that discretionary judgment on the facts of each case is the only way in which they can be equitably distinguished. See : para 595 of the Commission’s Report.

American experience is not different. In some of the States murder and rape were punishable with death. But that was not the only punishment. The, Law gave the Jury discretion in capital sentencing, and the question arose recently before the Supreme Court of America in McGauthn v.

California(1) whether in tile absence of any standards for deciding when the accused should be sentenced to death or to life imprisonment the provision of law which gives the discretion to the Jury was constitutional. Mr. Justice Harlan delivered the opinion of five Judges and Mr. Justice Black substantially agreed with that opinion in a separate judgment. The majority held that “the infinite variety of cases and facets to each case would make general standards either meaning less ‘boiler plate’ or a statement of the obvious that no Jury would need.” The majority agree with the view of the Royal Commission already referred to and observed “those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability.” The model Judicial (‘ode which was presented to the court as an attempt towards standardization was strongly criticised by the majority who pointed out that tile Craftsmen of the Model Judicial Code had expressly agreed with ,he conclusion of the Royal Commission that the factors which determined whether the, sentence of death is the appropriate penalty in particular cases are too complex to be expressed within the limits of a simple formula. Some of the circumstances of aggravation and mitigation were mentioned in the Appendix to, the Code. But it was pointed out that the Draftsmen of the Code did not restrict themselves to the items referred to in the Appendix but expressly stated that besides the above circumstances the court was bound to take into consideration “any other facts that the court deems relevant”. This only meant that any exhaustive enumeration of aggravating or mitigating circumstances is impossible-the admission of which emphasizes the view that standardisation is impossible.

Finally the majority observed at page 726 : “In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital, cases is offensive to anything in the Constitution.” (1) United States Supreme court report Lawyers’ Edition, 28, 713.

559 In India this onerous duty is cast upon Judges and for more than a century the judges are carrying out this duty under the Indian Penal Code. The impossibility of laying down standards is at the very core of the criminal law as administered in India which invests the Judges with a very wide discretion in the matter of fixing the degree of punishment. That discretion in the matter sentences as a already pointed out, liable to be corrected by superior courts. Laying down of standards to the limited extent possible as was done in the Model Judicial Code would not serve the purpose. The exercise of judicial discretion on well-recognised principles is, in the final analysis, the safest possible safeguard for the accused.

It was next contended by Mr. Garg that uncontrolled and unguided discretion in the judges to impose capital punishment or imprisonment for life was hit by Article 14 of the Constitution. we do not find any merit in this contention also. If the Law has given to the Judge a wide discretion in the matter of sentence to be exercised by him after balancing all the aggravating and mitigating circumstances of the crime, it will be impossible to say that there would be at all any discrimination, since facts and Circumstances of one case can hardly be the same as the facts and circumstances of another. It has been pointed out by this Court in Budhan Choudhry and others v. The State of Bihar(“) Art. 14 can hardly be invoked in matters of judicial, discretion. This Court observed at page 1054 “It has, however, to be remembered that, in the language of F ankurter, J. in Snowden v. Hughes, ‘the Constitution does not assure uniformity of decisions or immunity from merely erroneous action, whether by the Courts or the executive agencies of a State’. The judicial decision must of necessity depend on the facts and circumstances of each particular case and what may superficially appear to be an unequal application of the law may not necessarily amount to a denial of equal protection unless there is shown to be present in it an element of intentional and purposeful discrimination….. Further, the discretion of judicial officers is not arbitrary and the law provides for revision by superior courts of orders passed by the Subordinate courts. In such circumstances, there is hardly any ground for apprehending any capricious discrimination by judicial tribunals.” Crime as crime may appear to be superficially the same but the, facts and circumstances of a crime are widely different and since a decision of the court as regards punishment is dependent upon a consideration of all the’ facts and circumstances, there is Hardly any ground for challenge under Article 14.

Lastly it was contended by Mr. Garg that under Article 21 of the Constitution no person shall be deprived of his life except according to procedure established by law and, in his submission.

(1) [1955] S.C.R. 1045.

560 before the-sentence of death is passed there is, in fact, no procedure established by law. It is admitted that the Criminal Procedure Code lays down a detailed procedure but that procedure, according to Mr. Garg, is limited to the finding of guilt. After the accused is found guilty of the offence, there is no other procedure laid down by the law for determining whether the sentence of death or something less is appropriate in the case. Therefore, he contended, death sentence is unconstitutional. We are not impressed by this argument also. The accused who is charged for murder knows that he is liable to be sentenced to death in the Committing Court itself. He knows what the evidence is. He further knows that if after trial in the Sessions Court he is found guilty of murder, he is liable to be sentenced to the extreme penalty. Experience of trials shows that where the accused knows that the facts of the case are against him. the whole attempt on the part of his counsel is to fill the record with as many circumstances in his favour as possible which would tend to show that he is either guilty of a lesser crime or, in any event, there are mitigating and extenuating circumstances. The court is primarily concerned with all the facts and circumstances in so far as they are, relevant to the crime and how it was committed and since at the end of the trial he is liable to be sentenced, all the facts and circumstances bearing upon the crime are legitimately brought to the notice of the court. Apart from the cross-examination of the witnesses, the Criminal Procedure Code requires that the accused must be questioned with regard to the circumstances appearing against him in the evidence. He is also questioned generally on the case and there is an opportunity for him to say whatever he wants to say. He has a right to examine himself as a witness, thereafter, and give evidence on the material facts. Again he and his counsel are at liberty to address the court not merely on the question of guilt but also on the question of sentence. In important cases like murder the court ‘always gives a chance to the accused to address the court on the question of sentence. Under the Criminal Procedure Code after convicting the accused the court has to pronounce the sentence according to law. In a Jury trial if the accused is convicted the Judge shall (unless he proceeds in accordance with the provisions of section 562) pass sentence on him according to law. See section 306 (2). Similarly, where the case is tried by the Judge himself sub-section (2) of section 309 says that if the accused is convicted, the Judge. shall, unless he proceeds in accordance with the provisions of section 562, pass sentence on him according to law. The sentence follows the conviction, and it is true that no formal procedure for producing evidence with reference to the sentence is specifically provided. The reason is, that relevant facts and circumstances impinging on the nature and circumstances of the crime are already before the court. Where counsel addresses the court with 561 regard to the character and standing of the accused, they are duly considered by the court unless there is something in the evidence itself which belies him or the Public Prosecutor for the State challenges the facts. If the matter is relevant and essential to be considered, there is nothing in the Criminal Procedure Code which prevents additional evidence being taken. It must, however, be stated that it is not the experience of criminal courts in India that the accused with a view to obtaining a reduced sentence ever offers to call additional evidence.

However, it is necessary to emphasize that the court is principally concerned with the facts and circumstances, whether aggravating or mitigating, which are connected with the particular crime under inquiry. All such facts and circumstances are capable of being proved in accordance with the provisions of the Indian Evidence Act in a trial regulated by the Cr. P.C. The trial does not come to an end until all the relevant facts are proved and the counsel on both sides have an opportunity to address the court. The only thing that remains is for the Judge to decide on the guilt and punishment and that is what section 306(2) and 309(2) Cr. P.C. purport to provide for. These provisions are part of the procedure established by law and, unless it is shown that they are invalid for any other reasons, they must be ‘regarded as valid. No reasons are offered to show that they are constitutionally invalid, and, hence, the death sentence imposed after trial in accordance with the procedure established by law is not unconstitutional under Article 21.

In the result, the appeal fails and is dismissed.

G.C. Appeal dismissed.

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IN THE SUPREME COURT OF INDIA
BENNETT COLEMAN & CO. & ORS. …PETITIONER
Vs.
UNION OF INDIA & ORS. …RESPONDENT
DATE OF JUDGMENT : 30/10/1972

BENCH: SIKRI, S.M. (CJ) RAY, A.N. REDDY, P. JAGANMOHAN MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH

CITATION:
1973 AIR 106 1973 SCR (2) 757
1972 SCC (2) 788

CITATOR INFO :
RF 1973 SC1461 (1787)
R 1974 SC 366 (98)
F 1974 SC1232 (10)
R 1974 SC1300 (24)
RF 1974 SC1389 (174)
F 1975 SC 32 (32)
RF 1976 SC1207 (86,89,91,177,179,445,541)
R 1978 SC 597 (41,68,77,131,176,195)
R 1978 SC 727 (34)
RF 1979 SC 25 (35)
RF 1980 SC 898 (35)
R 1981 SC1368 (7)
RF 1983 SC 937 (12)
RF 1986 SC 515 (22,33,35,64,65,89,102)
RF 1986 SC 833 (45)
R 1986 SC 872 (70,75,77)

ACT:

Constitution of India 1950, Arts. 14 & 19 (1) (a)–Newsprint policy for 1972-73 whether violates Articles 19(1) (a) and 14 -Validity of Remarks V, VII(a), VII(c), VIll and X of Policy–Competency of shareholders of company to file petitions under Art.32–Emergency proclaimed under Art. 358 of Constitution–Application in respect of enforcement of fundamental rights whether barred.

HELD: Per Majority (Sikri. C.J., Rayand Jaganmohan Reddy, JJ.) (1)The Bank Nationalization case has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders’ rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1) (a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the Corporation. [773C-D] In the present case the individual rights of freedom of speech and expression of editors,Directors and Shareholders are all expressed through their newspapers through which they speak. The locus standi of the shareholder petitioners is beyond challenge 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. [773D- F] (ii)The present- petitions which were originally filed to challenge the Newsprint Policy for 1971-72 were amended to challenge the 1972-73 policy. The impeached policy was a continuation of the old policy. 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 Art. 19 or be otherwise unconstitutional. [774 F, G, H] Executive action which is unconstitutional is not unusual during the proclamation of emergency. During the proclamation Art. 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Art. 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted. [775A-B] (iii)The power of the Government to import newsprint cannot be denied. The power of the Government to control the distribution of newsprint cannot equally be denied.

This Court cannot adjudicate on such policy measures unless the policy is alleged to. be mala fide. The Court could also not go into the dispute as to the quantity of indigenous newsprint available for newspapers. [776D; 776E] (iv)The records with regard to the making and publication of the news print policy for 1972-73 showed that the policy was published under the authority of the Cabinet decision.

The policy was therefore validly brought into existence.

(v) Although Art. 19(1) (a) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation. The Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to single out the press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started and compel the press to Government aid, this would violate Art. 19(1) (a) and would fall outside the Protection afforded by Art.

19(2).

[777B-D] 759 The concept of regulation of fundamental rights borrowed and extracted from American decisions cannot be accepted. The American First Amendment contains no exceptions like our Art. 19(2) of the Constitution. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done. [783B; 784C] (vi)A newspaper control policy is ultra vires the Import Control Act and the Import control Order. The machinery of Import Control cannot be utilised to control or curb circulation or growth or freedom of newspapers in India.

The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here., The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint. [780H; 781A-B] (vii)This Court in the Bank Nationalisation case laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right.

Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test. [781C-D] An examination of the provisions of the newsprint policy indicates how the petitioner’s fundamental rights had been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers., The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss.

The direct effect is that freedom of speech and expression is infringed. [782B-C] (viii)It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.

[782G] (ix)In the present case fixation of page limit will not only deprive the petitioners of their economic vitality but also restrict the freedom of expression by reason of the compulsive reduction of page level entailing reduction of circulation and demanding the area of coverage for news and views. [790D-E] If as a result of reduction in pages the newspapers will have to depend on advertisements as the main source of their income, they will be denied dissemination of news and views.

That will also deprive them of their freedom of speech and expression. On the other hand if as a result of restriction on page limit the newspapers will have to sacrifice advertisements and thus weaken the limit of financial strength, the Organisation may crumble., The loss on advertisements may not only entail the closing down but also affect the circulation and thereby infringe on freedom of speech and expression. [790F-G] (x)The impeached policy violates Art. 14 because it treats newspapers which are not equal equally in assessing the needs and requirements of newsprint. The 7 newspapers which were operating above 10 page level are placed at a disadvantage by the fixation of 10 page limit and entitle- ment to quota on that basis. There is no intelligible differentia.

[791H; 792A-B] 760 The basic entitlement in Remark V to quota for newspapers operating above 10 page level violates Article 19(1)(a) because the quota is hedged in by direction not increase the page number above 10. The reduction of page limit to 10 for the aforesaid reasons violates Article 19(1)(a) and Article 14 of the Constitution. [792C] (xi)Under Remark VII(C) those-newspapers within the ceiling of 10 pages get 20 per cent increase in the number of pages.

They require circulation more than the number of pages.

They are denied circulation as a result of the policy., The big English dailies which need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are permitted quota. for increase but they are denied the right of circulation. This is not newsprint control but newspaper control. [792F-G] (xii)Discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by which newspapers with less than 1,00,000 circulation have been given 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% increase in circulation. [795C-D] (xiii) The first part of Remark VIII prohibits increase in pages by reducing circulation. in the past adjustability between pages and circulation was permitted.

The individual requirements of different dailies render it eminently desirable in some cases to increase the number of pages than circulation. The denial of this flexibility or adjustment is rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press. Big dailies are treated to be equal with newspapers who are not equal to them thus violating Art. 14. [793E-F] (xiv) The second prohibition in Remark VIII prevented common ownership units from adjusting between them the newsprint quota alloted to each of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership unit for another newspaper belonging to that unit. Newsprint is allotted to each paper. The news- paper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group. [794 B; & D] (xv) Under Remark X a common ownership unit could bring out a newspaper or start a new edition of an existing paper even from their allocated quota. it is an abridgment of the freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a# unit can use the allotted quota for changing the page structure and circulation of different editions of the same paper. Newspapers however cannot be permitted to use allotted quota for starting a new newspaper. Newspapers will have to make necessary application for allotment of quota in that behalf. It will be open to the appropriate authorities to deal with the application in accordance with law. [794G-H] (xvi) The liberty of the press remains an Ark of the Covenant. The newspapers give the people the freedom to find out which ideas are correct. Therefore the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions of newspapers. [796A-C] (xvii) The Press is not exposed to any mischief of monopolistic combination. The newsprint policy is not a measure to combat monopolies.

761 The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed or will appropriately enable the members of the society to preserve their political expression of comment not only upon public affairs but also upon the vast range of views and matters needed for free society. [797D-F] (xix) Clause 3(3A) of the 1962 Order provides that no consumer of newsprint other than a publisher of text books of general interest shall use any kind of page other than newsprint except with the permission of the Controller. It was therefore wrong to say that it was open to newspapers to make unrestricted use of any form of paper so long as news- papers did not apply for newsprint. [798F] (xx) In the result the provisions in remarks V, VII(a), VII(C) and VIII of the Policy being violative of Arts. 14 & 19 (1) (a) of the Constitution must be struck down as unconstitutional. The prohibition in Remark X against common ownership unit from starting a new newspaper periodical or a new edition must be declared unconstitutional and struck down as violative of Art. 19 (1) (a) of the Constitution. [799B-D] [In the circumstances of the case the Court did not find it necessary to express any opinion on Clause 3(3) and’ Clause 3(3A) of the Control Order] State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatanam, [1964] 4 S.C.R. 99, Tata Engineering & Locomotive Co. v. State of Bihar, [1964] INSC 44; [1964] 6 S.C.R., 885, Chiranjit Lal Choudhuri v. The Union of India & Ors. [1950] INSC 38; [1950] S.C.R. 869, Express Newspapers (Private) Ltd. & Anr. v. The Union of India & Ors. [1959] S.C.R. 12, Sakai Papers (P) Ltd. & Ors. v. The Union of India, [1961] INSC 281; [1962] 3 S.C.R. 842, Romesh Thappar v. State of Madras, [1950] S.C.R.

594, Brij Bhushan V. State of Delhi, [1950] INSC 15; [1950] S.C.R. 605, R.

C. Cooper v. Union of India, [1970] INSC 18; [1970] 3 S.C.R. 530, District Collector of Hyderabad & Ors. v. M/s Ibrahim & Co. etc.

[1970] 3 S.C.R. 498, State of Madhya Pradesh & Anr. v.

Thakur Bharat Singh[1967] INSC 16; , [1967] 2 S.C.R. 454, Hamdard Dawakhana (Wakf) Lal Kuan Delhi & Anr. v. Union of India & Ors., [1960] 2 S.C.R. 1671, Red Lion Broadcasting Co. v. Federal Communications Com. [1969] USSC 14; [1969] 393 US 367=23 L.Ed 371, United States v. O’Brian, [1968] USSC 116; [1968] 391 US 367=23L.Ed. 2d 371, United States v. O’Brien, [1968] USSC 116; [1968] 391, U.S. 367=20 L.Ed. 2d. 672, Abdul Azict Aminudinv. State of Maharashtra, [1964] 1 S.C.R.

830, Dwarkadas Shrinivas v.The Sholapur & Weaving Co. Ltd., [1953] INSC 87; [1954] S.C.R. 674,Commonwealth of Australia v. Bank of New South Wales, [1950] A.C.235 and Citizen Publishing Co.

v. United States[1969] USSC 49; , [1969] 394 U.S. 131=22 L. Ed. 2 d. 148, referred to.

Per Beg J. (concurring) The ambit of the conditions in a licence cannot under the provisions of the Imports and Exports Control Act, after newsprint has been imported under a licence, extend to laying down how it is to be utilized by a newspaper concern for its own genuine needs and businesses because this would ?.mount to control of supply of news by means of newsprint instead of only regulating its import.

[833C-D] The relevant enactments and orders seem to authorise only the grant of licences for particular quotas to those who run newspapers on the strength of their needs, assessed on the basis of their past performances and future requirements and other relevant data, but not to warrant an imposition of further conditions to be observed by them while they are genuinely using the newsprint themselves in the course of carrying on a legitimate and permissible occupation and business. The impugned restrictive conditions thus appear to go beyond, the scope of the Essential Commodities Act 1955 as well as the imports & Exports (Control) Act, 1947.

Nor could any legal 762 authority be found for them in the provisions of the Press Books Act 1867, Registration of Newspapers (Central Rules) 1956, and Press Council Act, 1965, to which reference was made. [833D-G] Therefore the argument put forward on behalf of the petitioners that after the allocation of quotas of newsprint to each set of petitioners, on legally relevant material, the further restrictions sought to be imposed, by means of the notified newsprint control policy, on the actual mode of user of newsprint for publication of information or views by the licensees, similar to those which were held by this Court in Sakai Papers case to be invalid, are not covered by any law in existence, had to be accepted. Hence it was not even necessary to consider whether they were reasonable restrictions warranted by either Art. 19 (2) or Art. 19 (6) of the Constitution. They must first have the authority of some law to support them before the question of considering whether they could be reasonable restrictions on fundamental rights of the petitioner could arise. [833H-834B] Per Mathew J. (dissenting) (1) Art. 19 (1) (a) guarantees to the citizens, the fundamental right of the freedom of speech and Art, 19(2) enumerates the type of restrictions which might be imposed by law. It does not follow from this that freedom of expression is not subject to regulations which may not amount to, abridgment. It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be anabridgment of the freedom of speech. No freedom however absolute, can be free from regulation. Though the right under Art. 30(1) is in terms absolute, this Court said in In Re the Kerala Education Bill 1957, ([1959] S.C.R. 995), that the right is subject to reasonable regulation. [803F-G] (ii) If, on account of scarcity of newsprint, it is not possible, on an equitable, distribution to allot to the petitioners, newsprint to the extent necessary to maintain the present circulation of the newspapers or their page level has to be reduced, it cannot be contended that there has been abridgment of freedom of speech. Surely the reduction in the page level or circulation is the direct result of the diminished supply of newsprint. Yet it cannot be said that there is an abridgment of the freedom of speech of the petitioners. There might be an abridgment of speech, but not an abridgment of the freedom of speech. [807C-D] (iii) The pith and substance test, although not strictly appropriate, might serve a useful purpose in the process of deciding whether the provisions in question which work some interference with the freedom of speech are essentially regulatory in character. [807C-D] (iv) The crucial question today, as regards Art. 14, is whether the command implicit in it constitutes merely a bar on the creation of inequalities existing without any contribution thereto by State action. It has been said that justice is the effort of man to mitigate the inequality of man. The whole drive of the directive principles of the Constitution is toward this goal and it is in consonance with the new concept of equality. The only norm which the Constitution furnishes for distribution of the material resources of the community is the elastic norm of the common good [see Art. 39(b)]. It cannot be said that the principle adopted for the distribution of newsprint is not for the common good. [816C-F] That apart one of the objects of the Newsprint policy was to remedy the inequality created by the previous policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10 or more.. The allowance of 20 per cent 763 increase for growth in the page level provided in Remark VII is based on a classification and that classification is grounded on an intelligible differentia having a nexus to the object sought to be achieved. [816G] (v) If the entitlement of a consumer of newsprint is calculated on the basis of page-level and circulation of the newspaper it would be an integral part of any system of rationing to tell the consumer that he should maintain the page level and circulation of the paper. The provision in Remark VIII does not say that the proprietor or publisher of a newspaper should reduce its circulation. The provision in effect only tells the proprietor/ publisher of the newspaper “maintain the circulation at the present level or increase it if you like by reducing the page level.” This would not amount to an abridgment of the freedom of speech. [817 D & F] (vi) Under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy for the distribution of newsprint for maintenance of circulation at its highest possible level as it furthers the right of the community to hear, will only advance and enrich that freedom. [819D] (vii) It is difficult to understand how the fixation of a maximum page level of 10 for calculation of quota of newsprint would offend the fundamental right of freedom of speech of the petitioners. The freedom of speech does not mean a right to obtain or use an unlimited quantity of newsprint., Art. 19(1) (a) is not the “guardian of unlimited talkativeness.” [814F-G] (viii) It is settled by the decision of this Court in Hamdard Dawakhana ([1960] 2 S.C.R. 671) that commercial advertisement does not come within the ambit of the freedom of speech guaranteed by Art. 19(1)(a). Curtailment of speech occasioned by rationing of newsprint due to its scarcity can only affect freedom of speech indirectly and consequently there would be no abridgment of it. [815B-C] (ix) The Government may under cls. 3 of the Imports (control) Order, 1955 totally prohibit the import of newsprint and thus disable any person from carrying on a business in newsprint, if it is in the general interest of the public not to extend any foreign exchange on that score.

If the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from need of the community for information and the fundamental duty of Government to educate the people as also to satisfy the individual need for self expression, it is not for the proprietor of a newspaper alone to say that he will reduce the circulation of the newspaper and increase its page level, as the community has an interest in maintaining or increasing circulation of newspapers.. The claim to enlarge the volume of speech at the expense of circulation is not for exercising the freedom of speech guaranteed by Art.

19(1) (a) but for commercial advertisement for revenue which will fall within the ambit of that subarticle. [820B-E] (x) The printer or publisher of each newspaper owned by a common ownership unit is a separate consumer and it is to that consumer that the quota is allotted. The application for quota made by the common ownership unit specifies the entitlement of each newspaper owned by it, and quota is granted to each newspaper on that basis. If it were opened to a common ownership unit to use the quota allotted for one newspaper owned by it for another newspaper, or for a different edition of the-same newspaper, that would frustrate the whole scheme of rationing. Prohibition of interchangeability has nothing to do with Art. 19(1) (a).

[822C-D] 764 (xi) That there is a valid classification between a person owning no newspaper and a common ownership unit owning two or more newspapers cannot be denied. Any person desiring to express himself by the medium of a newspaper cannot be denied an opportunity for the same. The right guaranteed under Art. 19(1)(a) has an essentially individual aspect. A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. if a common ownership unit were to go on acquiring or sponsoring new newspapers and if the claim for quota for all the newspapers is admitted, that would result in concentration of newspaper ownership and will accelerate the tendency towards monopoly in the newspaper industry. Since the quantity of newsprint available for distribution is limited, any system of rationing must place some limitation upon the right of a person to express himself through newspapers. [822H; 823A-D] (xii) The contention that the newsprint Policy was not binding since it had no statutory backing could not be accepted. The newsprint Policy was issued by the Chief Controller of Imports & Exports and the Additional Secretary to Government, had authenticated it. The newsprint Policy was placed before both the Houses of Parliament. Even if it was administrative in character it was capable of founding rights and duties. [823F; 824B] (xiii) The contention that after newsprint has been imported, there was no longer any power left in the Government or in the Chief Controller of Imports and Exports to direct the manner in which it should be utilized, could not be accepted. Even if it be assumed that Government or the Chief Controller of Imports and Exports has no power under cl. 5(1)(i) of the Imports (Control) Order 1955, to issue directions as regards the mode of utilization of newsprint after its import, it is clear that the Government has power by virtue of the provisions of s. 3 of the Essential Commodities Act, 1955, to pass an Order as regards the utilization of newsprint, as newsprint is an “essential commodity” under s. 2(vii) of that Act. [824F; 825C-D] (xiv) Clauses 3(3) and 3(3A) of that newsprint order were not violative of Art. 14 of the Constitution. [826F] (xv) It was not necessary to express any opinion as regards the maintainability of the writ petitions on the ground that consumers of newsprint in question were not citizens. [826G]

ORIGINAL JURISDICTION Writ Petitions Nos. 334 of 1971, 175, 186 and 264 of 1972.

Petitions under Article 32 of the Constitution of India for the enforcement of fundamental rights.

N. A. Palkhiwala, S. J. Sorabjee, M. O. Chenai, S. Swarup, Ravinder Narain, O. C. Mathur and J. B. Dadachanji, for the petitioners (in W.P. No. 334 of 1971.) C. K. Daphtary, M. C. Bhandare, Liela Seth, O. P.

Khaitanand N. C. Shah, for the Petitioner (in W.P. No. 175 of 1972).

S. J. Sorabjee, Ramanathan, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the Petitioners (in W.P. No.

186 of 1972).

765 M. K. Nambyar, K. K. Venugopal, J. B. Dadachanji, Ravinder Narain and O. C. Mathur, for the petitioners (in W.P. No.

264 of 1972).

F. S. Nariman, Additional Solicitor-General of India, G.

Das and B. D. Sharma, for the respondents (in W.Ps. Nos.

334, 175 and 186 of 1972).

J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the Interveners Nos. 1 and 2.

O. P. Khaitan, for Intervener No. 3.

The majority judgment of Sikri, C.J. and Ray and Jaganmohan Reddy, JJ. was delivered by Ray, J. Beg, J. delivered a separate concurring opinion. Mathew, J. delivered a separate dissenting opinion.

RAY, J. These petitions challenge the Import Policy for Newsprint for the year April 1972 to March 1973. The News- print Policy is impeached as an infringement of fundamental rights to freedom of speech and expression in Article 19 (1) (a) and right to equality in Article 14 of the Constitution.

Some provisions of the Newsprint Control Order 1962 are challenged as violative of Article 19(1)(a) and Article 14 of the Constitution.

The import of newsprint is dealt with by Import Control Order, 1955 (referred to as the 1955 Import Order). The 1955 Import Order is made in exercise of powers conferred by sections 3 and 4A of the Imports and Exports Control Act, 1947 (referred to as the 1947 Act). Section 3 of the 1947 Act, speaks of powers of the Central Government to prohibit, restrict or otherwise control imports and exports. Section 4A of the 1947 Act contemplates issue or renewal of licences under the 1947 Act for imports and exports. Item 44 in Part V of Schedule I of the 1955 Import Order relates to newsprint. Newsprint is described as white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70% of the fibre content). The import of newsprint is restricted under the 1955 Import Order. This restriction of newsprint import is also challenged because it infringes Article 19(1)(a). It is said that the restriction of import is not a reasonable restriction within the ambit of Article 19(2).

The Newsprint Control Order 1962 (referred to as the 1962 Newsprint Order) is made in exercise of powers conferred by section of the Essential Commodities Act. 1955 (referred to as the 1955 Act). Section 3 of the 1955 Act enacts that if the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supply of essential commodities or for securing their equitable distribution and availability 766 at fair prices, it may, by order, provide for regulating or prohibiting production, supply and distribution and trade and commerce therein. Section 2 of the 1955 Act defines “essential commodity” Paper including newsprint, paper board and straw board is defined in section 2 (a) (vii) of the 1955 Act to be an essential commodity.

The 1962 Newsprint Order in clause 3 mentions restrictions on acquisition, sale and consumption of newsprint. Sub- clause 3 of clause 3 of the 1962 Newsprint Order states 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. Sub-clause 3A of clause 3 of the 1962 Newsprint Order states that no consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller. Sub-clause 5 of clause 3 of the 1962 Newsprint Order states that in issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from, time to time. Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order are challenged in these petitions on the ground that these clauses affect the volume of circulation, the size and growth of a newspaper and thereby directly infringe Article 19 (1 ) (a) of the Constitution.

The restrictions mentioned in these sub-clauses of clause 3 of the 1962 Newsprint Order are also said to be not reasonable restrictions within the ambit of Article 19 (2) of the Constitution.

Sub-clauses 3 and 3A of clause 3 of the 1962 Newsprint Order are further impeached on the ground that they offend Article 14 of the Constitution. Sub-clause 3A is said to confer unfettered and unregulated power and uncontrolled discretion to the Controller in the matter of granting of authorisation. It is said that there are no provisions for redress of grievances by way of appeal or revision of the Controller’s decision in the matter of grant or renewal of authorisation. The restrictions are said to be not reason- able or justified in the interest of general public. The distinction between publishers of text-books and books of general interest on the one hand and other consumers of newsprint on the other in sub-clause 3A is said to be discriminatory and without any rational basis. Again, the disability imposed by sub-clause 3A on newspapers preventing them from using printing and writing paper while permitting all other consumers to do so, is said to be irrational discrimination between newspapers and periodicals as the latter are permitted to use unlimited quantity of printing and writing paper in addition to their allocation of newsprint.

767 The Newsprint Policy of 1972-73 referred to as the Newsprint Policy deals with white printing paper (including water lined newsprint which contained mechanical wood pulp amounting to not less than 70 per cent of the fibre content). Licences are issued for newsprint. The validity of licences is for 12 months. The Newsprint Policy defines “common ownership unit” to mean newspaper establishment or concern owning two or more news interest newspapers including at least one daily irrespective of the centre of publication and language of such newspapers. Four features of the Newsprint Policy are called in question. These restrictions imposed by the Newsprint Policy are said to infringe rights of freedom of speech and expression guaranteed in Article 19 (1)(a) of the Constitution. First, no new paper or new edition can be started by a common ownership unit even within the authorised quota of newsprint. Secondly, there is a limitation on the maximum number of pages to 10. No adjustment is permitted between circulation and the pages so as to increase the pages.

Thirdly, no inter-changeability is permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers, with less than 10 pages. It is said that the objectionable and irrational feature of the Newsprint Policy is that a big daily newspaper is prohibited and prevented from increasing the number of pages, page area and periodicity by reducing circulation to meet its requirement even within its admissible quota. 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. The current policy prohibits the same. The restrictions are, therefore, said to be irrational, arbitrary and unreasonable. Big daily newspapers having large circulation contend that this discrimination is bound to have adverse effects on the big daily newspapers.

The Newsprint Policy is said to be discriminatory and violative of Article 14 because common ownership units alone are prohibited from starting a new paper or a new edition of the same paper while other newspapers with only one daily are permitted to do so. The prohibition against inter- changeability between different papers of the same unit and different editions of the said paper is said to be arbitrary and irrational, because it treats all common ownership units as equal and ignores pertinent and material differences between some common ownership units as compared to others.

The 10 page limit imposed by the policy is said to violate Article 14 because it equates newspapers which are unequal and provides the same permissible page limit for newspapers which are essentially local in their character and news- papers which reach larger sections of people by giving world news 14-L499Sup.CI/73 768 and covering larger fields. The 20 per cent increase allowed for newspapers, whose number of pages was less than 10 is also challenged as violative of Article 14 by discriminating against newspapers having more than 10 pages.

The difference in entitlement between newspapers with an average of more than 10 pages as compared with newspapers of 10 or less than 10 pages is said to be discriminatory because the differentia is not based on rational incidence of classification.

The import policy for newsprint has a history. From 1963-64 quota of newsprint for dailies has been calculated on the basis of page level of 1957 and circulation of 1961-62 with ad hoc increases for growth on the basis of percentage of pages calculated on circulation and allowance of page increase of not more than 2 pages at a time subject to a maximum of 12 pages. The bulk of newsprint was imported in the past. Indigenous newsprint was limited in supply. From 1963-64 till 1970-71 printing and writing paper available in our country was taken into account for framing the import policy. The quantity which could be made available to consumers of newsprint for the requirements of publishers of text books were considered in that behalf. After 1971-72 printing and writing paper was in short supply. According to the Government this was adversely affecting the requirements of the publishers of text books. The loss to newsprint consumer from the non-availability of white printing paper was made good in additional quantity of imported newsprint. The import quota of newsprint was increased from 1,40,000 tonnes in 1970-71 to 1.80,000 tonnes in 1971-72.

From 1972-73 with regard to daily newspapers three principal changes were effected. First, the base year for circulation was taken at 1970-71. Second, the page level was taken at the maximum of 10 pages instead of the previously operating 10 page level. Those operating at a page level of over 10 pages were given the facility of basing their required quota either on actual circulation for 1970-71 or admissible or calculated circulation for 1971-72 whichever is more.

Third, the increase in quota for growth was allowed as in the past, In the case of circulation growth it was stipulated in terms of percentage of circulation over the previous year. In the case of page growth the maximum of 10 pages was permitted.

The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore. they could not invoke fundamental rights. Secondly, it was, said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.

769 This Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam(1) and Tata Engineering & Locomotive Co. v. State of Bihar (2 ) expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word “citizen” in Part 11 and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In the State Trading Corporation(1) case (supra) the Court was not invited to “tear the corporate veil”. In the Tata Engineering & Locomotive Co. (2) case (supra) this Court said that a company wag a distinct and separate entity from shareholders. The corporate veil it was said could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities. Mukherjea J., in Chiranjit Lal Choudhuri v.

The Union of India & Ors. (3 ) expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.

There are however decisions of this Court where relief has been granted to the petitioners claiming fundamental rights as shareholders or editors of newspaper companies. These are Express Newpapers (Private) Ltd. & Anr. v. The Union of India & Ors.(4)’and Sakal Papers (P) Ltd. & Ors. v. The Union of India (5).

In Express Newspapers (4 ) case (supra) the Express News papers (Private Ltd. was the petitioner in a writ petition under Article 32. The Press Trust of India Limited was another petitioner in a similar writ petition. The Indian National Press (Bombay) Private Ltd. otherwise known as the “Free Press Group” was a petitioner in the third writ petition. The Saurashtra Trust was petitioner for a chain of newspapers in another writ petition. The Hindustan Times Limited was another petitioner. These petitions in the Express Newspapers(4) case (supra) challenged the vires of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. The petitioners contended that the provisions of the Act violated Articles 19(1) (a), 19(1)(g) and 14 of the Constitution.

In Sakal Papers(5) case (supra) the petitioners were a Pri- vate limited company carrying on business of publishing daily and weekly newspapers in Marathi and two shareholders in the (1) [1964] 4 S.C.R. 99. (2) [1964] INSC 44; [1964] 6 S.C.R. 885.

(3) [1950]S.C.R. 869. (4) [1959] S.C.R. 12.

(5) [1961] INSC 281; [1962] 3 S.C.R. 842.

770 company. There were two other petitions by readers of “Sakar” newspaper. ‘Me reader petitioners also challenged the constitutionality of the Act. The petitioners there challenged the Daily Newspapers (Price and Page) Order, 1960 as contravening Article 19(1)(a) of the Constitution.

Neither in the Express Newspapers case (supra) nor in Sakal Papers case (supra) there appears to be any plea raised about the maintainability of the writ petition on the ground that one of the petitioners happened to be a company.

In the Express Newspapers case (supra) this Court held that freedom of speech and expression includes within its scope the freedom of the Press. This Court referred to the earlier decisions in Romesh Thappar v. State of Madras(1) and Brij Bhushan v. State of Delhi(2). Romesh Thappar’s case (supra) related to a ban on the entry and circulation of Thapper’s journal in the State of Madras under the provisions of the Madras Maintenance of Public Order Act, 1949. Patanjali Sastri, J. speaking for the Court said in Romesh Thappar’s case (supra) that “there can be no doubt that the freedom of speech and expression includes freedom of propagation of ideas and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication.

Indeed, without circulation publication would be of little value”. In Brij Bhushan’s case (supra) Patanjali Sastri, J.

speaking for the majority judgment again said that every free man has undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press”. Bhagwati, J. in the Express Newspapers case (supra) speaking for the Court said that the freedom of speech and expression includes freedom of propagation of ideas which freedom is ensured by the freedom of circulation and that the liberty of the press is an essential part of the right to freedom of speech and expression and that the liberty of the press consists in allowing no previous restraint upon publication.

Describing the impugned Act in the Express Newspapers case (supra) as a measure which could be legitimately character- ised to affect the press this Court said that if the intention or the Proximate effect and operation of the Act was such as to bring it within the mischief of Article 19 (1) (a) it would certainly be liable to be struck down. But the Court found in the Express Newspapers case (supra) that the impugned, measures were enacted for the benefit of the working journalists and it was, therefore, neither the intention nor the effect and operation (1) [1950] INSC 16; [1950] S.C.R. 594 (2) [1950] INSC 15; [1950] S.C.R. 605 771 of the impugned Act to take away or abridge the right of freedom of speach and expression enjoyed by the petitioners.

There are ample observations of this Court in the Express Newspapers case (supra) to support the right of the petitioner companies there to invoke fundamental right in aid of freedom of speech and expression enshrined in the freedom of the press. This Court said that if the impugned measure in that case fell within the vice of Article 19(1) (a) it would be struck down. This observation is an illustration of the manner in which the truth and spirit of the freedom of press is preserved and protected.

In Sakal Papers case (supra) this Court struck down section 3(1) of the Newspaper (Price and Page) Act, 1956 and allowed the petitioner company relief-on that basis. In the, Sakal Papers case (supra) relief was granted to the shareholders and the company. The Court thought it unnecessary to express any opinion on the right of the readers to complain of infraction of fundamental rights in Article 19(1) (a) by reason of impact of law abridging or taking way the freedom of speech and expression.

In the present case, the petitioners in each case are in addition to the company the shareholders, the, editors and the publishers. In the Bennett Coleman group of cases one shareholder, a reader of the publication and three editors of the three dailies published by the Bennett Coleman Group are the petitioners. In the Hindustan Times case a shareholder who happened to be a Deputy Director, a shareholder, a Deputy Editor of one of the publications, the printer and the publisher of the publications and a reader are the petitioners. In the Express Newspapers case the company and the Chief Editor of the dailies are the petitioners. In the Hindu case a shareholder, the Managing Editor, the publisher of the company are the petitioners.

One of the important questions in these petitions is whether the shareholder, the editor, the printer, the Deputy Director who are all citizens and have the right to freedom under Article 19(1) can invoke those rights for freedom of speech and expression, claimed by them for freedom of the press in their daily publication. The petitioners contend that as a result of the Newsprint Control Policy of 1972-73 their freedom of speech and expression exercised through their editorial staff and through the medium of publications is infringed. The petitioners also challenge the fixation of 10 page ceiling and the restriction on circulation and growth on their publications to be not only violative of but also to abridge and take away the freedom of speech and expression of the shareholders and the editors. The shareholders, individually and in association with one, another represent the medium 772 of newspapers through which they disseminate and circulate their views and news. The newsprint policy express them to heavy financial loss and impairs their right to carry on the business of printing and publishing of the dailies through the medium of the companies.

In R. C. Cooper v. Union of India (1) which is referred to as the Bank Nationalisation(1) case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank. The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder.

The petitioner in the Bank Nationalisation case (supra) claimed that the rights guaranteed to him under Articles 14, 19 and 31 of the Constitution were impaired. The petitioner’s grievances were these. The Act and the Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practiced by the State the value of the petitioner’s investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.

The ruling of this Court in Bank Nationalisation case (supra) was this :

“A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the Company; it may impair the rights of the shareholders as well as of the company. Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired, if- that action, impairs the rights of the Company as well.

The test in determining whether the shareholder’s right is impaired is not formal;

it is essentially qualitative; if the State action impairs the right of the shareholders- as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.” (1) [1970] INSC 18; [1970] 3 S.C.R. 530.

773 In the Bank Nationalisation case (supra) this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case (supra) the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to from a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders’ rights are equally and necessarily affected if the. rights of the company are affected. The rights of shareholders with regard to Article 19(1) (a) are projected and manifested by the newspapers owned and controlled by the shareholders through-the medium of the corporation. 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 challenge after the ruling of this Court in the Bank Nationalisation case (supra). The presence of the company is on the same ruling not a bar to the grant of relief.

The rulings in Sakal Papers case (supra) and Express News- papers case (supra) also support the competence of the petitioners to maintain the proceedings.

Article 358 of the Constitution was invoked by the Additional Solicitor General to raise the bar to the maintainability of the petition. Under Article 358 while a proclamation of a emergency is in operation nothing in Article 19 shall restrict the power of the State to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take. It was, therefore, said on behalf of the Government that the petitioners could not challenge the 1972-73 Newsprint Policy during the proclamation of emergency. Counsel on behalf of the petitioners contended that Article 358 is inapplicable because it has no application to the law or executive 774 action taken prior to the proclamation of emergency. The Newsprint Policy was said by the petitioners to be a, continuation of the old newsprint policy which had originated earlier and continued from year to year for a decade till the proclamation of emergency in 1971. The restrictions on newsprint policy were imposed before the proclamation of emergency. It was, therefore, said that these restrictions could be challenged.

In District Collector of Hyderabad & Ors. v. M/s Ibrahim & Co. etc.(1) this Court considered whether the Sugar Control Order 1963 was protected under Article 358 and 359 because the President had declared that state of emergency. The Sugar Control Order 1963 was made in exercise of powers conferred by section 3 of the Essential Commodities Act.

The order placed restrictions on sale and delivery by the producers. The Order also controlled the production, distribution of sugar by producers or recognised dealers.

The Order regulated the movement of sugar at fixed price.

The state of emergency was declared on 28 October, 1962. It was contended that on the issue of proclamation of emergency the State is, for the duration of the emergency, competent to enact legislation notwithstanding that it impairs the freedoms guaranteed by Article 19 of the Constitution. The State was also said to be competent to take executive action during the proclamation of emergency which the State would for the provisions contained in Article’ 19 of, the Constitution be competent to make. In Ibrahim’s case (supra) the State made an executive order. It was said “the executive action of the State Government which is otherwise invalid is not immune from attack, merely because a proclamation of emergency is in operation when it is taken”.

The Order of the State Government in that case was held to be contrary to statutory provisions contained in the Sugar Dealers Licensing Order and the Sugar Control Order. The executive action was, therefore, held not to be protected under Article 358 of the Constitution.

Originally, the petitioners challenged the validity of the Newsprint Policy for 1971-72. The petitions were amended.

As a result of the amendment the petitioners challenged the validity of the 1972-73 newsprint policy. The contention of the petitioners is correct that the impeached policy is a continuation of the old policy. 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 otherwise unconstitutional. The contention on behalf of the Government that the 1972-73 policy is protected during the proclamation of emergency and is a mere administrative action is unsound Executive action which is unconstitutional (1) [1970] 3 S.C.R. 498.

775 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 legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted.

This Court in State of Madhya Pradesh & Anr. v. Thakur Bharat Singh(1) considered whether the State Government could make an order under the Madhya Pradesh Public Security Act 1959 directing that Thakur Baharat Singh shall not be in any place in Raipur District and that he was to reside in a named town. The Order was made on 24 April, 1963. The Government contended in the Madhya Pradesh case (supra), that Article 358 protected legislative and executive action taken after the proclamation of emergency which was declared on 20 October, 1962. This Court rejected the contention of the State that the Order was protected by Article 358. This Court held that if the power conferred by the 1959 Act to impose unreasonable restrictions offended Article 13 by taking away or abridging the rights conferred by Part El of the Constitution the law in contravention of Article 13 would be void. Article 358 suspends the provisions of Article 19 during an emergency. This Court said that all executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State but for the provisions in Part III of the Constitution. Article 358 does not invest the State with arbitrary authority to take action to the prejudice of citizens, and others; it merely provides that so long as the proclamation of emergency subsists law may be enacted and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. The Madhya Pradesh was (supra) is an authority for the proposition that Article 358 does not operate to validate any legislative provision which is invalid because of the constitutional prohibition. In the present case, the impugned newsprint policy is continuation of prior executive action and of previous law. Therefore, in our judgment there is no merit in this preliminary objection.

The Additional Solicitor General contended that the right to import and utilise newsprint was not a common law right. It was said to be a special right covered by several statutes.

The Imports (1) [1967] INSC 16; [1967] 2 S.C.R. 454.

776 and Exports Act 1947, the Imports Control Order, 1955, the Essential Commodities Act 1955 and the Newsprint Control Order 1962 were referred to in support of the proposition that if the petitioners asked for a quota of newsprint they had to abide the conditions prescribed. It was also said that the Press would have no special fundamental right under Article 19 (1) (a). The legislative measures were, therefore, said by the Government to be regulation of newspaper business even though there might be the incidental result of curtailing circulation. Reliance was placed on the decisions in Express Newspapers case (supra) and Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Apr. v. Union of India & Ors.(1), in support of the contention that there would be no abridgement of fundamental right of the press if as a result of regulation of newspaper business there was the incidental effect of curtailing circulation. The Newsprint Policy was defended by the Government to be in aid of allowing small newspapers to grow and to prevent a monopolistic combination of big newspapers.

The power of the Government to import newsprint cannot be denied. The power of the Government to control the distribution of newsprint cannot equally be denied. It has, of course, to be borne in mind that the distribution must be fair and equitable. The interests of the big, the medium and the small newspapers are all to be taken into consideration at the time of allotment of quotas. In the present case, there was some dispute raised as to whether there should be more import of newsprint. That is a matter of Government policy. This Court cannot adjudicate on such policy measures unless the policy is alleged to be malafide.

Equally, there was a dispute as to the quantity of indigenous newsprint available for newspapers. This Court cannot go into such disputes.

The petitioners raised a question as to whether the Newsprint Control Policy is a newsprint control or a newspaper control. Mr. Palkhivala characterised the measure to be newspaper control with degrees of subtlety and sophistication. Rationing of newsprint is newsprint control. That is where quota is fixed. Newspaper control can be said to be post-quota restrictions. The post-quota restrictions are described by Mr. Palkhivala to be newspaper control. The newspaper control, according to the petitioners, is achieved by measures adopted in relation to common ownership units owning two or more newspapers. These common ownership units are not allowed to bring out new papers of new editions of their dailies. These are not to have interchangeability of quota within their unit. In addition large papers are not allowed to have more than 10 pages. It was said that in the past several years Newsprint Control Policy worked remarkably without any challenge.

(1) [1959] INSC 157; [1960] 2 S.C.R. 671.

777 Article 19(1) (a) provides that all citizens shall have the right to freedom of speech and expression. Article 19 (2) states that. 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 interests of 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) does not mention the freedom of the Press, it is the settled view of this Court that freedom of speech and expression includes freedom of the Press and circulation.

In the Express Newspapers case (supra) it is said that there can be no doubt that liberty of the Press is an essential part of the freedom of speech and expression guaranteed by Article 19 (1) (a). The Press has the right of free propagation and free circulation without any previous restraint on publication. If a law were to, single out the Press for laying down prohibitive burdens on it that would restrict the circulation, penalise its freedom of choice as to personnel, prevent newspapers from being started and compel’ the press to Government aid. This would violate Article 19 (1)(a), and would fall outside the protection afforded by Article 19 (2).

In Sakal Papers case (supra) it is said that the freedom of speech and expression guaranteed by Article 19 (1) gives a citizen the right to propagate and publish his ideas to disseminate them, to circulate them either by words of mouth or by writing. This right extends not merely to the matter it is entitled to circulate but also to the volume of circulation. In Sakal Papers case (supra) the Newspaper (Price and Page) Act 1956 empoweredthe Government to regulate the prices of newspapers in relation to their pages and sizes and to regulate the allocation of space for advertisement matter. The Government fixed the maximum- number of pages that might be published by a newpaper according to the price charged. The Government prescribed the number of supplements that would be issued. This Court held that the Act and the Order placed restraints on the freedom of the press to circulate. This Court also held.

that, the freedom of speech could’ no+. be restricted for the purpose of regulating the commercial aspects of activities of the newspapers.

Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the,conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and’ views and advertisements which are to be published and circulated.

The law which lays excessive and prohibitive burden which, would restrict the circulation of a newspaper will not be saved by 778 Article 19 (2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakai Papery case (supra) to be the direct consequence of curtailment of advertisement.

The freedom of a newspaper for publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19 (1)(a) on the aspects of propagation, publication and circulation.

This Court in Hamdard Dawakhana case (supra) considered the effect of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 in relation to Articles 19 (1)(a), 19 (1) (f), 19 (1)(g) and 19(6). The Act in that case was to control the advertisement of drugs in certain cases to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. The Act was challenged on the ground of violation of fundamental rights. The ruling of this Court in Hamdard Dawakhana case (supra) that advertisement is no doubt a form of speech and it is only when an advertisement is considered with the expression or propagation of idea that it can be said to relate to freedom of speech. The right to publish commercial advertisements is not a part of freedom of speech.

The Additional Solicitor General contended that the news- print policy did not violate Article 19 (1) (a). The reasons advanced were these. The newsprint policy does not directly and immediately deal with, the right mentioned in Article 19 (1)(a). The test of violation is the subject matter and not the effect or result of the legislation. If the direct object of the impugned law or action is other than freedom of speech and expression Article 19 (1)(a) is not attracted though the right to freedom of speech and expression may be consequentially or incidentally abridged.

The rulings of this Court in Express Newspapers case (supra) and Hamdard Dawakhana case (supra) were referred to. In the Express Newspapers case (supra) the Act was said to be a beneficent legislation intended to regulate the conditions of service of the working journalists. It was held that the direct and inevitable result of the Act could not be said to be taking away or abridging the freedom of speech and expression of the petitioners. In. the Hamdard Dawakhana case (supra) the scope and object of the Act and its true nature and character were found to be not interference with the right of freedom of speech but to deal with trade or business. The subject matter of the import policy in the 779 present case was rationing of imported commodity and equitable distribution of newsprint. The restrictions in fixing the page level and circulation were permissible as directions, which were considered necessary in order to see that the imported newsprint was. properly utilised for the purpose for which the import was considered necessary.

Article 369 of the Constitution shows that rationing of and distribution of quota of newsprint and regulation of supply is not a direct infringement of Article 19 (1)(a). The scarcity of newspapers Justifies the regulation and the direction in the manner of use. The American decision in Red Lion Broadcasting Cc.. v. Federal Communications Com.(1) was relied on to show 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 incidentally limit the unfettered exercise are not regarded as a type of law which the First Amendment to the American Constitution forbade the Congress of the United States to pass. ‘the decision in United States v. O’Brien(1) was relied on as an authority for such regulation and control of the content of speech. Any incidental limitation or incidental restriction on the freedom of speech is permissible if the same is essential to the furtherance of important governmental interest in regulating speech and freedom.

The Additional Solicitor General further put emphasis on the, pith and substance of the Import Control Act to control imports, and exports for these reasons. One method of controlling import is to regulate the use and disposition of the goods after they are, bought. The decision in Abdul Aziz Amiudin v. State of Maharashtra(1) was referred to indicate that the scope of control of import extended to every stage at which the Government felt it necessary to see that the goods were properly utilised. Therefore, the Government submission is that regulations regarding utilisa- tion of goods by importers after import is not a regulation with regard to production, supply and distribution of goods so as to attract Entry 29 List 11 of the Government of India Act, 1935 corresponding to Entry 27 of List 11 in the Constitution. It was said that even if there was any trenching on Entry 29 List II of’ the 1935 Act corresponding to Entry 27 List II of the Constitution it would be an incidental encroachment not affecting the validity of’ the Act. The directions in the control policy are, therefore, justified by the Government under clause 5 of the 1955 Import Control Order read with section 3(1) of the 1947 Import ‘and Export Act and they are also justified under the provisions of clause 3 of the Newsprint Control Order- 1962.

(1) [1969] 393 US 367-23L Ed. 2d. 371.

(2) [1968] 391 US 367-20 L. Ed. 2d. 672..

(3) [1963] INSC 21; [1964] 1 S.C.R. 830.

780 The Newsprint Control Order 1962 was said to give sufficient guidance with regard to exercise of powers. Clause 3(5) of the Control Order of 1962 indicated that the Controller was to have regard to the principles. The import policy was upheld by the Government to have administrative character for guidance. in the matter of grant of licences. It was said that the impeached newsprint policy was given to the public as information regarding principles governing issue of import licences. The import policy was evolved to facilitate mechanism of the Act. The Import policy was said to have necessary flexibility for six years prior to April 1961. The Newsprint Policy operated successfully. The Controller has not abused his power.

Mr. Palkhivala said that the tests of pith and substance of the subject, matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights.

The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. if it be assumed that the direct object of the law or action has to.

be direct abridgment of the right of free speech by the impugned law or action it is to be, related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental, right although its direct subject matter may be different. A law’ dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word “direct” would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner’s contention about fundamental right. In the present case, the object of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota.

Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.

The question neatly raised by the petitioners was whether the impugned Newsprint Policy is in substance a newspaper control. A newspaper control policy is ultra vires the Import Control Act and the Import Control Order. Entry 19 of List 1 of the 1935 Act could empower Parliament to control imports. Both the State legislature and Parliament have power to legislate upon newspapers 781 falling under Entry 17 of List III. The two fields of legislation are different. The Import Control Act may include control of import of newsprint but it does not allow control of newspapers. The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry.

Such a question does not arise here. The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.

This Court in the Bank Nationalisation case (supra) laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right.

Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test.

In Sakal Papers case (supra) this Court referred to the ruling in Dwarkadas Shrinivas v. The Sholapur & Weaving Co.

Ltd.(,)’ that it is the substance and the practical result of the act of the State that should be considered rather than the pure legal form. The correct approach _should be to enquire what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the, restrictions. in Sakal Papers case (supra) raising the price affected and infringed fundamental rights. In Sakal Papers case (supra) this Court said that the freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. The impact on the freedom of the press would still be direct in spite of the fact that it is not said so with words. No law or action would state in words that rights of freedom of speech and expression are abridged or taken away. That is why Courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights. The ruling of this Court in Bank Nationalisation case (supra) is the test of direct operation upon the rights. By direct operation is meant the direct consequence or effect of the Act upon the rights. The decision of the Privy Council in Commonwealth of Australia v. Bank of New South Wales(2) also referred to the test, as to whether/the Act directly restricted inter-State business of banking, in order to ascertain whether the Banking Act 1947 in that case (1) [1953] INSC 87; [1954] S.C.R. 674. (2) [1950] A.C. 235.

782 is aimed or directed at, and the purpose, object and intention of the Act is restriction of inter-State trade, commerce and inter-course.

The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners’ fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.

The Additional Solicitor General contended that a law which merely regulates even directly the freedom of the press is permissible so long as there is no abridgment or taking away of the fundamental rights of citizens. He leaned heavily on American decisions in support of the submission that the right of the press of free expression is of all citizens speaking, publishing and printing in all languages and the grave concern for freedom of expression which permitted the inclusion of Article 19 (1)(a) is not to be read as a command that the Government of Parliament is without power to protect that freedom. The Constitutional guarantees of freedom of speech and expression are said by the Additional Solicitor General to be not so much for the benefit of the press as for the benefit of all people. In freedom of speech, according to the Additional Solicitor General, is included the right of the people to read and the freedom of the press assures maintenance of an open society. What was emphasized on behalf of the Government was that the freedom of the press did not countenance the monopolies of the market.

It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of +,he people to speak and express.

Article 13 of our Constitution states that the State is prohibited from making any law which abridges or takes away any fundamental rights. Again, Article 19(2) speaks of reasonable restrictions on the exercise of fundamental rights to freedom of speech and expression. Our Constitution does not speak of laws regulating fundamental rights. But there is no bar on legislating on the subject of newspapers as long as legislation does not impose unreasonable restrictions within the meaning of Article 19(2). It 783 is also important to notice as was done in earlier decisions of this Court that our Article 19(1)(a) and the First Amendment of the American Constitution are different. The First Amendment of the American Constitution enacts that the Congress shall make no law……. abridging the freedom of speech or of the press. The American First Amendment contains no exceptions like our Article 19 (2) of the Constitution. Therefore, American decisions have evolved their own, exceptions. Our Article 19(2) speaks of reasonable restrictions. Our Article 13 states that the State shall not make laws which abridge or take away fundamental rights in Part III of the Constitution.

The concept of regulation of fundamental rights was borrowed and extracted by the Additional Solicitor General from American decisions. In Citizen Publishing Co. v. United States(1) the power of the Government to regulate the newspaper industry through the provisions of the Sherman Act was recognised. In that case the Court affirmed a decree requiring the separation of two potentially competing newspapers. The two newspapers entered into an agreement to end business or commercial competition between them. Three types of control were imposed by the agreement. One was with regard to price fixation. The second was profit pooling. The third was market control. The Government complained that the agreement was an unreasonable restraint on trade or commerce in violation of Sherman Act. The Citizen Publishing Co.(1) case (supra) held that the First Amendment in the American Constitution far from providing an argument against the application of the Sherman Act under the facts of the case provided strong reasons to the contrary. The American decision rested upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the, public. The Sherman Act was invoked in that case to prevent non-governmental combinations which tended to impose restraints upon constitutional guarantee of freedom. The regulation of business is one thing. The American case is an instance of the power of the Government to regulate newspaper industry.

The other American decision on which the Additional Solicitor General relied is United States v.

O’Brien (supra). In O’Brien’s case (supra) the Court held that one who had burnt one’s selective service registration certificate did so in violation of a federal statute making the knowing destruction or mutilation of such a certificate a criminal offence. It was contended in O’Brien’s case (supra) that whenever the person engaging in the conduct of burning the certificate intends thereby to express an idea the idea of both “speech” and “non-speech” elements were combined to the same course (1) [1969] 304 U.S. 131-22L.Ed.2d. 148 15-L499Sup.C. 1./73 784 of conduct. It was held that there was- a sufficiently important governmental interest in regulating the non-speech element. The Court noticed there that such incidental limitation on First Amendment freedom was justified because an important and substantial governmental interest was involved. The Governmental interest was found to be unrelated to the suppression of free expression and that the incidental restriction on any First Amendment freedoms involved was no greater than absolutely essential in the furtherance of the governmental interest.

These American decisions establish that a government regu- lation is justified in America as an important or essential government interest which is unrelated to the suppression of free expression. This Court has established freedom of the press to speak and express. That freedom cannot be abridged and taken away by the manner the impugned policy has done.

At this stage it is necessary to appreciate the petitioners’ contentions that the newsprint policy of 1972-73 violates Articles 19 (1)(a) and 14 of the Constitution.

The first grievance is about Remark V in the newsprint policy. ‘Remark V deals with dailies which are not above 10 pages and dailies over 10 pages. With regard to dailies which are not above 10 pages the policy is that the computation of entitlement to newsprint is on the basis of the actual newsprint consumption in 1970-71 or 1971-72 whichever is less. The average circulation, the average number of pages and the average page area actually published are all taken into consideration. The petitioners and in particular the Bennett Coleman Group illustrated the vice of this feature in Remark V by referring to their publications Maharashtra Times, Nav Bharat Times and Economic Times. The average circulation of these three publications in 1971-72 was higher than the average circulation in 1970-71. It is, therefore, said that Remark V which shows the basis of consumption to be the lesser of the two years will affect their quota. The Government version is that the figure of consumption in 1971-72 did not represent a realistic picture because of three principal events during that year. These were the Bangladesh Crisis, the Indo-Pak War in 1971 and the Elections. The petitioners say that the quota for 1971-72 was determined in April 1971 which was prior to the occurrence of all the three events. Again, in the past when there was the Sino Indian Conflict in 1962 and the Indo-Pak War in 1965 the performance of the newspapers during. the years preceding those events was not ignored as was done in the impugned policy for 1972-73. With regard to elections, the petitioners say that a separate additional quota has been given. In the policies prior to 1971-72 the growth achieved in circulation as a result of the grant of the additional quota 785 for elections was taken into consideration in determining the quota for the following year. The Petitioners, therefore, contend that the policy in Remark V instead of increasing circulation win result in the reduction of circulation. The petitioners are, in our judgment, right in their submission that this policy negatives the claim of the Government that this policy is based on circulation.

With regard to dailies over 10 pages Remark V proceeds on the calculation of the basic entitlement to be on an average of 10 pages and either the average circulation in 1970-71 or the admissible circulation in terms of 1971-72 Newsprint Policy plus increases admissible in terms of Remark VII whichever is more. The Bennett Coleman Group contends that the Times of India Bombay, the Times of India Delhi and the Times of India Ahmedabad had 13.13, 13.99 and 17.83 as the average number of pages in 1971-72. The average number of pages in 1972-73 under Remark V of the Policy is fixed at

10. Therefore, the percentage of cut in pages is 23.8, 28.4 and 43.8 per cent respectively with regard to these three papers.

The dominant direction in the newsprint policy particularly in Remarks V and VIII is that the page limit of newspapers is fixed at 10. The petitioners who had been operating on a page level of over 10 challenge this feature as an infringement of the freedom of speech and expression.

Remark V is therefore impeached first on the ground of fixa- tion of 10 page ceiling and secondly on the basis of allotment of quota.

Prior to 1972-73 newspapers which had started before 1961-62 were allowed to increase pages by reducing circulation. On the other hand newspapers which started after 1961-62 did not have sufficient quantity of newsprint for increasing circulation and could not increase pages. To. remedy this situation the Government case is that the impeached newsprint Policy of 1972-73 provided in Remark V for- newspapers operating on a page level of 10 or less quota on an average page number and actual circulation of 1970-71 or 1971-72 whichever is less and 20% increase for increasing page number subject to ceiling of 10 pages. The other provision in Remark V for quota relating to newspapers operating above 10 page level is an, average circulation of 1970-71 and admissible circulation in 1971-72 plus increases admissible whichever is more. Thus in the case of newspapers operating on 10 or less than 10 page level additional quota has been given to increase their pages to

10. But the imposition of 10 page ceiling on newspapers operating on a page level above 10 is said to violate Articles 19(1)(a) and 14.

786 The Government advances these six reasons in support of their policy. First, there is shortage of newsprint.

Second, the average page number of big dailies is 10.3. Out of 45 big dailies 23 operate on a page level of less than 10 and 22 operate on a page level of more than 10. Therefore, the Government says that the average of all dailies is 5.8.

Thirdly, the Government says that the 45 big dailies with a circulation of 46.74 lakhs get about 1,16,700 metric tonnes.

This is about 59.9 per cent of the total allocation. The 346 medium and small dailies with a circulation of 41.60 lakhs get about 74,300. metric tonnes which represent as

40.1 per cent of the total allocation. Fourthly it is said that the feature is to remedy the situation arising out of historical reasons. Fifthly, the Government says that the reduction in allotment is marginal. By way of illustration it is said that the Bennett Coleman group gets 828.79 metric tonnes less. Sixthly, it is said that 500 dailies applied for quota. Newprint has to be equitably rationed. Allowing some dailies more than 10 pages will adversely effect those dailies with less than 10 pages.

In our view shortage of newsprint can stop with allotment.

If the Government rests content with granting consumers of newsprint a quantity equitably and fairly, the consumers will not quarrel with the policy. The consumers of newsprint are gravely concerned with the other features.

The fixation of 1 0 page limit is said by the Government to be on account of short supply of newsprint and equitable distribution of newsprint. In the year 1972-73 the quantity available for allocation was 2,15,000 tonnes. In the previous year the quantity was 2,25,000 tonnes. The shortfall is 10,000 tonnes. The percentage therefore will be 10,00OX100=4-1/2% ———- 2,25,000 If the reduction is only 4-1/2% the cut in the Hindu was calculate ‘by Mr. Nambiar to be 16-10=6 viz. 6X100=37-1/2 per cent. —– 16 In other words, the cut worked out to much higher proportion. Mr. Palkhivala for the Bennett Coleman group, Mr. Daphtary for the Hindustan Times group contended that there was no shortage in quantity of newsprint. It is not possible to go into these disputes of figures. The reduction is established by Mr. Nambiar to be disproportionate to shortfall. Particularly in the past, in the year 1962 there was a shortage. There was a cut in quota. The original cut was 5 per cent on those whose quota was above 100 tonnes but less than 1000 tonnes and 7-1/2 per 787 cent for those whose quota was 1000 tonnes and above.

Later, the cut was reduced to 2-1/2 per cent and applied uniformly to those whose quota was 1000 tonnes and above.

On behalf of the petitioners it was rightly said that if there was any real shortage 20 per cent increase in pages under Remark VII(C) to newspaper below 10 page level would not have been possible.

According to the petitioners, there is no distinction made by the Government between dailies in Indian language and English dailies and particularly big English dailies. A big daily, according to the Government, is taken to mean a daily with a circulation of more than 50,000 copies irrespective of the number of pages and it makes no distinction between language and English dailies. Out of the 45 big dailies 30 are language dailies and 15 are English dailies. The 15 pB`= English dailies operate on an average page level of over 10.

The average of their page level has been about 13. The medium English dailies have had an average page level of above 11. Of the 30 language dailies 23 operate on an average page level below. The language dailies, it is said by the petitioners, operate on an average page level below 10 as they do not require more than 10 pages. The average of the page level of language dailies is about 8. Six of the big language dailies have a page level of about 9. The petitioners, therefore, contend that if the maximum number of pages is fixed at 10 the average page level of the big English and language dailies would come down to 9.8 and their page level would become more or less equal to the page level of medium dailies whose requirements are much less.

It would, therefore, in our view amount to treating unequals equally and to benefit one type of daily at the cost of another.

Since 1957, dailies operating on a page level of 12 or more have not been given any increase in page level. There was no fixed number of pages. For determining quota the page level of 1957 was taken. Dailies operating on a page level of less than 10 have been granted increase in pages from time to time. Such dailies operating on a page level of less than 10 have chosen to increase circulation rather than to increase the number of pages, because of lack of advertisement support. From 1963-64 upto and including 1971-72 any quota for increase in pages could always be used for or adjusted against increase in circulation. Similarly any quota for increase in circulation, could be used for or adjusted against increase in number of pages. It is only because the newspapers were allowed to adjust between pages and circulation in the past that the big dailies’ had an actual page level of more than the permissible page level of 1957. But most of the big language dailies which had a page level of less than 10 did not increase their pages though they were permitted to do so.

788 In the past, newspapers which had 12 page limit were allowed to increase the page number. This is said to be the justification on the part of the Government to wipe out any inequity. It appears that 19 language dailies reduced their page numbers on the basis of which their quota was fixed in order to increase their circulation. If that is so, there is no reason for giving them additional quota for increasing page number specially by reducing the quota of the big dailies and imposing a 10 page limit on them. It is also found that 11 newspapers whose, quota was calculated on a page level above 10 have reduced their page numbers below 10 in order to increase circulation. These papers have also been granted additional quota to increase their pages upto

10. The Government Annexure R-4 establishes that these 11 newspapers are obtaining double benefit. First, because of quota calculated on a page level above 10 and second because of additional quota to increase pages upto 10 for they had actually reduced their page number to 10.

There are only 7 dailies of above 12 pages until the im- pugned policy hit these. Those are Amrita Bazar Patrike, Bombay Samachar. Hindu, Hindustan Times, Indian Express (Delhi, Bombay, Madurai, Vijayawada and Bangalore editions), the Times of India (Bombay and Delhi editions) and the Statesman. Out of these 7 dailies 6 are English dailies.

Bombay Samachar is a Gujarati daily. The maximum page level fixed at 10 and the prohibition against the adjustability between pages and circulation are strongly impeached by the petitioners. These 7 dailies except Bombay Samachar are common ownership units. Some of them publish other leading language dailies also. The maximum number of pages at 10 will, according to the petitioners, not only adversely affect their profits but also deprive them of expressing and publishing the quality of writings and fulfilment of the role to be played by the newspaper in regard to their freedom of speech and expression. While it must be admitted that the language dailies should be allowed to grow, the English dailies should not be forced to languish under a policy of regimentation. It is therefore correct that the compulsory reduction to 10 pages offends article 19(1)(a) and infringes the rights of freedom of speech and expression.

It is further urged that the Government has fixed the quota on the basis of circulation multiplied by pages. The Government has on the one hand compared the circulation of the big dailies with the circulation of medium and small dailies and on the other has ignored the difference in the number of pages of big dailies as compared to the number of pages of the medium and the small dailies. The difference in pages coupled with the 789 difference in circulation affords a reason for difference in the percentage of total allocation given to the big dailies as compared to the medium and the small dailies. _The average number of pages for the big dailies is 10.3, for the medium ‘dailies 8.3, and for the small dailies 4.4 (See Press in India 1971 page 134). The percentage of allocation for the big dailies reflects really the large number of pages they publish. The big dailies therefore have not only larger requirements but also they render larger services to the readers. The Newprint Policy of fixing the page level at 10 is seeking to make unequals equal and also to benefit one type of daily at the expense of another.

The historical reason given by the Government for fixing the maximum number of pages at 10 is that the effect of the policy on allowing any page increase and circulation increase from time to time has been to help the growth of the Press. This is how newspapers like Ananda Bazar Patrika, Jugantar and Deccan Herald are said to have come up. The Government also relies on the recommendation of the newspaper proprietors in the year 1971 that 8 pages should be considered the national minimum requirement for medium of information. The big English dailies had the number of pages over 12 in 1957. Because of adjustability between pages and circulation they had an actual page level which was higher than the permissible page level of 1957. The petitioners say that this has not impeded the growth of other papers. The policy prescribed by the Government of fixing the maximum page limit at 10 is described by the petitioners to hit the big dailies and to prevent the newspapers from rising above mediocrity. It is true that the Government relied on an historical reason. It is said to prevent big newspapers from getting any unfair advantage over newspapers which are infant in origin. It is also said that the Government policy is to help newspapers operating below 10 pages to attain equal position with those who are operating above 10 page level. But this intention to help new and young newspapers cannot be allowed to strangulate the freedom of speech and expression of the big dailies.

The Government has sought to justify the reduction in the page level to 10 not only on the ground of shortage of newsprint but also on the grounds that these big dailies devote high percentage of space to advertisements and therefore the cut in pages will not be felt by them if they adjusted their advertisement space. In our judgment the policy of the Government to limit all papers 790 at 10 pages is arbitrary. It tends to treat unequals as equals and discriminates against those who by virtue of their efficiency, standard and service and because of their All-India stature acquired a higher page level in 1957. The main source of income for the newspapers is from advertisements. The loss of revenue because of the cut in page level is said to be over several lakhs of rupees. Even if there is a saving in raw material by cut in page level there would be a revenue gap of a large sum of money. This gap could have been partly recouped by increasing the page level. The newspaper has a built-in mechanism.

Advertisements are not only the sources of revenue but also one of the factors for circulation. Once circulation is lost it will be very difficult to regain the old level. The advertisement rate has undergone slight increase since 1972.

As a result of the cut in page level the area for adver- tisements is also reduced.

This Court held in Hamdard Dawakhana case (supra) that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In Sakal Papers case (Supra) this Court held that if the space for advertisement is reduced earnings would decline and if the price is raised that would affect circulation. It appears to us that in the present case, ‘fixation of page limit will not only deprive the petitioners of their economic viability but also restrict the freedom of expression by reason of the compulsive re- duction of page level entailing reduction of circulation and denuding the area of coverage for news and views.

The estimated loss on account of reduction of page limit is Rs. 39 lakhs in the case of Bennett Coleman group, Rs. 44 lakhs in the case of Hindustan Times and Rs. 38 lakhs in the case of the Hindu. If as a result of reduction in pages the newspapers will have to depend on advertisements as their main source of income, they will be denied dissemination of news and views. That will also deprive them of their freedom of speech and expression. On the other hand, if as a result of restriction on page limit the newspaper will have to sacrifice advertisements ‘and thus weaken the link of financial strength, the organisation may crumble. The loss on advertisements may not only entail the closing down but also affect the circulation and thereby impinge on free- dom of speech and expression.

The reason given by the Government that the entitlement on the basic of the previous year has caused only a marginal loss in’ allotment is controverted by the petitioners. it is said that if the total quantity of newsprint available is 2,15,000 tonnes in 1972-73 the shortfall is only 10,000 tonnes because in the previous year the quantity available was 2,25,000 tonnes. The Bennett Coleman group alleges that the actual circulation of Times of India Bombay 791 in 1971-72 was of 1,58,700 copies though the quota for that year was calculated on the basis of a circulation of 2,02,825 copies and a page level of 13 and adjustability between paces and circulation were permissible. It is, therefore, said that though the Times of India under the impeached policy would have an allowable circulation of 2,08,920 and a page level of 10 it would not under the new policy have any permission to adjust between pages and cir- culation. In fact, it is said that if the pages are reduced to 10, its circulation would fall even below that of last year by reason of the fact that owing to reduction in pages the quality will suffer and the consequence will be downfall in circulation. The petitioners therefore rightly emphasise that to equate the big English dailies which are in a class by themselves with other dailies which need less than 10 pages indicates negation of an equitable distribution and proves irrational treating of dailies.

The justification pleaded by the Government is that big dailies chose. to increase pages rather than circulation in the past. In the past the newsprint allocation was based on the page level of 1957 and the circulation figures of 1961-

62. The Government says that newspapers which started after 1961-62 were unable to increase their pages. Therefore, the present policy is intended to remove that position. In our judgment it will depend on each paper as to how it will grow. Those who are growing should not be restricted if they can grow within their quota. In the past dailies having less than 10 pages were given increases and were allowed to come up to 10 pages from 4 pages in 1961-62 and 6 pages in 1962-63. Most of them could not even fully utilize the page increase allowed. The present impeached policy seeks to remove iniquities created by previous policies. It depends upon facts as to how much more newsprint a group of newspapers started after 1961-62 will require and secondly whether they are in a position to increase the page number.

It also appears that 19 language dailies reduced their page numbers on the basis of which the quota was calculated in order to increase their circulation. Therefore, there appears to be no justification for giving them additional quota for increasing page numbers by reducing the quota of the big dailies by imposing upon them the 10 page ceiling.

The 10 page ceiling imposed affecting 22 big newspapers operating above 10 page level with approximate circulation of over 23 lakhs i.e. more than 25% of the total circulation is arbitrary and treats them equally with others who, are unequal irrespective of the needs and requirements of the big dailies and thus violates Article 14 of the Constitution.

The impeached policy violates Article 14 because it treats newspapers which are not equal equally in assessing the needs and requirements of newsprint. The Government case is that out of 792 35 newspapers which were operating on a quota calculated on a higher page level than 10 pages 28 newspapers will benefit by the impeached policy of 1972-73. But 7 newspapers out of 22 which were operating above 10 page level are placed at a disadvantage by the fixation of 10 page limit and entitlement to quota on that basis. There is no intelligible differentia. Nor has this distinction any relation to equitable distribution of newsprint. The impeached policy also offends Article 19 (1) (a) of the Constitution. Newspapers like 19 language dailies reduced their pages in order to increase circulation though such language dailies had prior to 1972-73 been given quota to increase pages. Under the impeached policy these language dailies are given additional quota to increase their pages against to 10.

The basic entitlement in Remark V to quota for newspapers operating above 10 page level violates Article 19(1)(a) because the quota is hedged in by direction not to increase the page number above 10. The reduction of page limit to 10 for the aforesaid reasons violates Article 19 (1) (a) and Article 14 of the Constitution.

The other features in the newsprint policy complained of are those in Remark VII (c) read with Remark VIII of the impeached policy. Remark VII (c) allows 20 per cent increase to daily newspapers in the number of pages within the ceiling of 10 over the average number of pages on which the basic entitlement is fixed under Remark V. In other words, dailies with less than 10 pages are prevented from adjusting the quota for 20 per cent increase for increase in circulation. The Bennett Coleman group says that their Nav Bharat Times, Maharashtra Times and Economic Times would prefer to increase their circulation. Under Remark V they are entitled to quota on the basis of consumption in 1970-71 or 1971-72 whichever is less. This feature also indicates that the newsprint policy is not based on circulation.

Under Remark VII (c) these newspapers within the ceiling of 10 can get 20 per cent increase in the number of pages.

They require circulation more than the number of pages.

They are denied circulation as a result of this policy._ The big English dailies which need to increase their pages are not permitted to do so. Other dailies which do not need increase in pages are permitted quota for increase but they are denied the right of circulation. In, our view, these features were rightly said by counsel for the petitioners to be not newsprint control but newspaper control in the guise of equitable distribution of newsprint. The object of the impeached policy is on the one hand said to increase circulation and on the other to provide for growth in pages for others. Freedom of speech and expression is not only in the volume of circulation but also in the volume of news and views.

793 Remark VIII in the Newsprint Policy of 1972-73 imposes two types of restrictions. First a daily is not permitted to increase its number of pages by reducing circulation to meet its individual requirements. Secondly, dailies belonging to a common ownership unit are not permitted interchangeability between them of the quota allotted to each even when the publications are different editions of the same daily published from different places.

The first prohibition in Remark VIII against increase in pages, by reducing circulation has been introduced for the first time in the policy for 1972-73. The reason given by the Government for this feature is that newspapers would obtain a quota on the basis, of a certain stated circulation and they should not be allowed to, reduce circulation. The petitioners say that quota is not granted on the basis of actual circulation but is granted on the basis of notional circulation which means the actual circulation of 1961-62 with permissible increases year after year even though the actual circulation does not correspond to the permissible circulation on which the quota was based year after year.

The Times of India Bombay in 1971-72 demanded quota on the basis of 20 pages and a circulation of 1,70,000. ‘the Times of India was, allowed quota on the basis of 13.13 pages and a circulation of 2,02,817. The actual performance was average page number of 18.25 and circulation of 1,54,904.

In the past, adjustability between pages and circulation was permitted. In our judgment, the petitioners correctly say that the individual requirements of the different dailies render it eminently desirable in some cases to increase the number of pages than circulation. Such adjustment is necessary to maintain the quality and the range of the readers in question. The denial of this flexibility or adjustment is in our view rightly said to hamper the quality, range and standard of the dailies and to affect the freedom of the press.

The restriction on the petitioners that they can use their quota, to increase circulation but not the page number violates Articles 19 (1) (a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation.

Dailies operating below 10 page level are allowed increase in pages. This page increase quota cannot be used for- circulation increase. Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation.

Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota 794 but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19 (1)(a) of the Constitution.

Counsel for the petitioners contended that the second prohibition in Remark VIII in the Newsprint Policy prevented common ownership units from adjusting between them the newsprint quota allotted to each of them. The prohibition is to use the newsprint quota of one newspaper belonging to a common ownership unit for another newspaper belonging to that unit. On behalf of the petitioners it was said that from 1963-64 till 1966-67 inter,changeability was permitted between different editions of the same publication to the extent of 20 per cent. In 1967-68 and 1968-69 complete interchangeability between different editions of the same newspaper and between different newspapers and periodicals was permitted. In 1969-70 and 1970-71 the total entitlement was give” as an aggregate quota, though there was a separate calculation made for each newspaper. The present policy does not permit interchangeability. Interchangeability by using the quota for a new newspaper or a new edition or for another newspaper of the same unit will put common ownership unit in an advantageous position. Newsprint is allotted to each news; paper. The newspaper is considered to be the recipient. A single newspaper will suffer if common ownership units are allowed to adjust quota within their group.

The petitioners impeach Remark X in the Newsprint Policy for 1971-72 on the ground that a common ownership unit cannot bring out a new newspaper or start a new edition of an existing newspaper even from their allotted quota. Counsel on behalf of the petitioners rightly characterized this feature as irrational and irrelevant to the availability of newsprint. By way of illustration it was said that the Economic Times is sent by air to Calcutta and Delhi but the common ownership unit is not permitted to reduce the number of copies printed at Bombay and print copies out of the authorised quota for circulation at Calcutta and Delhi.

Similarly, it was said that there was no reason to support the policy in Remark X preventing a common ownership unit from publishing a new daily though a person who brought out one daily was allowed to start a second daily. This was challenged as discriminatory. It is an abridgment of the freedom of expression to prevent a common ownership unit from starting a new edition or a new newspaper. A common ownership unit should be free to start a new edition out of their allotted quota and it would be logical to say that such a unit can use its allotted quota for changing the page structure and circulation of different editions of the same paper. It is made clear that newspapers cannot be permitted to use allotted quota for starting a new newspaper.

Newspapers will 795 have to make necessary application for allotment of quota in that behalf. It will be open to the appropriate authorities to deal with, the application in accordance with law.

Until 1968-69 big dailies were treated alike but thereafter from 1970-71 onwards dailies with circulation of more than 1,00,000 copies have been put in a different category and given a lesser increase than those with a circulation of 50,000 to 1,00,000 copies though both are big dailies. The policy of the Government is to level all papers at 10 pages.

It tends to treat unequals. as equals. It discriminates against those who by virtue of their standing status and service on all India basis acquired a higher page level in the past. The discrimination is apparent from Remark VII in the newsprint Policy for 1972-73 by which newspapers with less than 1,00,000 circulation have been given 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only 3% increase in circulation.

Mr. Palkhivala said the policy worked admirably in the past because adjustability between pages and circulation was permitted. In our view the Newsprint Control has now been subverted to newspaper control. The growth of circulation does not mean that there should not be growth in pages. A newspaper “expands with the news and views. A newspaper reaches different sections. It has to be left to the newspapers as to how they will adjust their newsprint. At one stage the Additional Solicitor General said that if a certain quantity of steel was allotted the Government could insist as to how it was going to be used. It was said that the output could be controlled. In our view, newsprint does not stand on the same footing as steel. It has been said that freedom of the press is indispensable to proper working of popular Government. Patna jali Sastri, J. speaking for this Court in Ramesh Thappar’s case (supra) said that “Thus, every narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic Organization, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible”. It is appropriate to refer to what William Blackstone said in his commentaries :

“Every free man has a undoubted right to lay what sentiments he pleases before the public;

to forbid this is to destroy the freedom of the press-, but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.” 796 The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum “let the people have the truth and the freedom to discuss it and all will go well”. The liberty of the press remains an “Art” of the Covenant” in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct.

Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a different matter. The restrictions are to be removed. Newspapers have to be left free, to determine their pages, their circulation and their new editions within their quota of what has been fixed fairly.

Clauses 3 and 3A of the 1962 Newsprint Order prevent the petitioners from using white paper and writing paper. The additional Solicitor General at one stage said that it was open to any newspaper to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint.

This argument exposes grave errors. In the first place, it shows that there is no shortage’ of white printing paper.

Secondly, it will show that there is no justification for rationing of newsprint. The cost of indigenous white paper is double the cost of the imported newsprint. This high price of white printing paper is a deterrent to any newspaper to use it. The periodicals are permitted the use of white printing paper. That is because of Public Notice No. 4-ITC(PN)/63 dated 1 1 January, 1963. That may be one of the reasons why periodicals have not complained of the Policy. The periodicals can supplement their newsprint quota. Further, the clientele of the periodicals is different. The Prices of periodicals are also different.

In any event, it cannot be said that the newspapers can buy white printing paper to meet their requirements. Nor can such plea be an answer to the violation of fundamental rights in Article 19 (1) (a) or infraction of Article 14 by the provisions of the impeached Newsprint Policy.

In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rightS of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation- The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers Operating below 10 page level have been treated equally for assessing 797 the needs and requirements of newspapers with newspapers which are not their equal, Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation.

The Additional Solicitor General relied on the American decision in Red Lion Broadcasting Co. v. Federal Communica- tions Com. (supra) in support of the contention that there should be an uninhibited marketplace of idea in which truth will ultimately prevail and there should not be monopolization of that market whether it be by the government itself or by a private licensee- The press is not exposed to any mischief of monopolistic combination. The newsprint policy is not a measure to combat monopolies. The newsprint policy should allow the newspapers that amount of freedom of discussion and information which is needed or will appropriately enable the Members of the society to preserve their political expression of comment not only upon public affairs but also upon the vast range of views and matters needed for free society.

This Court in Sakai Papers case (supra) dealt with measures empowering the government to regulate allocation of space to be allotted for advertising matter. This Court held that the measure had the direct effect of curtailing the circulation of the newspaper and thus to be violation of Article 19 (1) (a). It was said on behalf of the Government that regulation of space for advertisement was to prevent unfair competition. This Court held that the State could help or protect newly started newspapers but there could not be an abridgment of the right in Article 19(1)(a) on the ground of conferring right on the public in general or upon a section of the public.

The Additional Solicitor General contended that the business aspect of the press had no special immunity and the incidental curtailment in the circulation could not be freedom of speech and expression of the press. This Court in Sakai Papers case (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for adver- 798 tisement by each paper. These measures were said to be com- mercial activities of newspapers. This Court said that restrictions could be put upon the freedom to carry on business but the fundamental right of speech and expression could not be abridged or taken away. There could be reasonable restrictions on that right only as contemplated under Article 19(2).

Mr. Nambiar contended that the Newsprint Policy did not fall within clause 5(1) of the Import Control Order 1955 and it was not validly made by the Central Government. The records with regard to the making and publication of the newsprint policy for 1972-73 were looked into by this Court. It appears that the policy was published under the authority of the Cabinet decision. The policy was therefore validly brought into existence. The various restrictions of the newsprint policy have been examined earlier. The various restrictions imposed by the newsprint policy are found to be unconstitutional.

Clause 3 of the Newsprint Control Order 1962 was contended to confer unfettered and unregulated power on an executive officer. Clause (3A) of the Order of 1962 was also said to confer naked and arbitrary power. The disability imposed on newspapers from using printing and writing paper was said to be discriminatory. The Additional Solicitor General contended that it is open to an unrestricted use of any form of paper so long as newspapers do not apply for newsprint.

This would establish that there is no shortage of white printing paper. The error in the Government contention is thereby exposed. The periodicals were permitted in terms of public Notice 4-ITC(PN)/63 dated 11 January 1963 unrestricted use of white printing paper to supplement their quota of newsprint. That again shows that the Government contention is wrong because there is restriction with regard to use of white printing paper. The cost of white printing paper is high. It is said that the cost is Rs. 2,750 per metric tonne for white printing paper compared to Rs. 1,274 of imported newsprint and Rs. 1,362 of Nepa newsprint.

Clause 3 (3A) of the Order provides that no consumer of newsprint other than a publisher of text books or books of general interest shall use any kind of paper other than newsprint except with the permission in writing of the Controller. White printing paper like newsprint can be rationed. The distribution is to be fair and equitable. It is necessary also to point out that text books and books of general interest require facilities for using white printing paper. Such measures with regard to rationing are defensible. It is true that no guidelines are to be found in clause 3 (3 Al) as to the circumstances under which a particular consumer of newsprint or class of consumers of newsprint other than a publisher of text books or books of general interest should or should not be allowed to use white printing paper. The Public Notice allowing periodicals 799 permission to use white printing paper is not challenged.

Periodicals were not before this Court. It is therefore not necessary to express any opinion on clause 3 (3) and clause 3 (3A) of the Control Order.

For the foregoing reasons the newsprint policy for 1972-73 violates Articles 19 (1) (a) and 14 of the Constitution.

The restrictions by fixing 10 page limit in Remarks V and VIII of the policy infringe Articles 19 (1)(a) and 14 of the Constitution and are therefore, declared unconstitutional and struck down. The policy of basic entitlement to quota in Remark V is violative of Articles 19(1)(a) and 14 of the Constitution and is therefore struck down. The measure in Remark VII(a) is violative of Articles 14 and 19 (1) (a) of the Constitution and is struck down.

The measures in Remark VII(C) read with Remark VIII are violative of Articles 19(1)(a) and 14 of the Constitution and are struck down. The prohibition in Remark X against common ownership unit from starting a new newspaper/periodical or a new edition is declared unconstitutional and struck down as violative of Article 19(1)(a) of the Constitution.

For these reasons the petitioners succeed. The import policy for newsprint for the year 1972-73 in regard to Remarks V, VII(a), VII(c), VIII and X as indicated above is struck down. The parties will pay and bear their own costs.

MATHEW, J. These four writ petitions concern the validity of sub-clauses (3) and (3A) of Cl. 3 of the Newsprint Control Order, 1962, passed by the Government of India under S. 3 of the Essential Commodities Act, 1955, and the provisions of the Newsprint Import Control Policy for 1972-73 hereinafter called the Newsprint Policy”. The petitioners challenge the validity of sub-clause (3) and (3A) of Cl. 3 of the- Newsprint Control Order and the provisions of the Newsprint Policy on the ground that they are violative of their fundamental right under Arts. 14 and 19 (1)(a) of ‘the Constitution. Newsprint, which is a variety of printing paper, is the principal raw material required for newspapers and periodicals. Until 1957, the newsprint required in the country was being imported. In or about the year 1957, a mill called the National New-Sprint and Paper Mills Ltd. was started. This mill is the only source of supply of indigenous newsprint. The newsprint produced in this mill is quite inadequate to meet the needs of the country.

The production, supply and distribution of newsprint has been controlled ever since 1939. Art. 369 of the Constitution vests the control of production, supply and distribution of newsprint within the exclusive jurisdiction of Parliament for a period of five years -L499Sup. CI/73 800 from the commencement of the Constitution. Newsprint is an essential commodity’ under the Essential Commodities Act, 1955 (see s. 2(a)(vii) of the Act).

The bulk of newsprint has to be imported from foreign coun- tries and the Central Government has a restricted system of import from the year 1943. The Central Government promulgated the Import (Control) Order, 1955, in the exercise, of the powers conferred by sections 3 and 4A of the Imports and Exports (Control) Act, 1947, and cl. 3(1) thereof reads as follows :

“3. Restrictions of Import on certain goods- (1) Save as otherwise provided in this Order, no person shall import any goods of the description specified in Schedule 1, except under, and in accordance with, a licence or a customs clearance permit granted by the entral Government or by any officer specified in Schedule II”.

White printing paper (excluding laid marked paper which con- tains mechanical wood pulp amounting to not less than 70 per cent of the fibre content) is included as item 44 in Part V of Schedule I to that Order.

Licence was granted to publishers of newspapers till 1962 for import of newsprint in accordance with the Import Trade Control policy promulgated from time to time,:

On January 17, 1962, in the exercise of the powers under cl.

3 of the Essential Commodities Act, 1955, the Central Government promulgated the newsprint Control Order, 1962.

Clause 3 and Schedule I of the Order are as follows “3. Restrictions on acquisition, sale and consumption of newsprint :- (1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order.

(2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that person of newsprint of that description or in that quantity is authorised by the Controller.

(3) 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.

all dailies with a circulation of 41.60 which represent aUf KHANNA AND Y. V. CHANDRACHUD, JJ.] 801 SCHEDULE-1

1. White printing paper (excluding laid marked paper) with fibre Content of not less than 70 per cent mechanical wood pulp.

2. Glazed newsprint.

3.lndigenous newsprint manufactured by NEPA mills.” On December 29, 1962, the Central Government amended the said Order by promulgating a new sub-clause in cl. 3, viz., cl. (3A) which runs as follows :- “(3A)-No consumer of newsprint, other than an publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in waiting, of the Controller.” The policy with regard to the import and utilization of newsprint is enumerated from time to time in the Import Trade Control Policy (Red Books). The Registrar of Newspapers, determines the newsprint and printing and writing paper entitlement of publishers of each of the newspapers in accordance with the aforesaid policy and the Chief Controller of Imports and Exports issues licences for import of newsprint in accordance with the determination by the Registrar.

The imported newsprint together with that produced in the country has to be rationed among the various newspapers in the Country.

In the year 1972-73, on account of suspension of U.S. aid, there was a reduction of 11,000 tonnes in the import of newsprint. Therefore, the newsprint available for distribution was less than what it was in 1971-72.

The provisions of the Newsprint Policy which are challenged in these petitions might be summarised as follows

1. Fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 or 1971-72 on the basis of (i) an average of 10 pages, and (ii) either the average circulation in 1970-71 or admissible circulation in 1971-72 plus in- creases admissible under the Policy of 1971-72 whichever is more (Remark V).

2. (i) Reduction in increases from 5 per cent to 3 percent for dailies with circulation of more than 1 lakh (Remark VII); and giving of 20 per cent increase to daily newspapers in the number of 802 pages` within the ceiling of 10 pages provided this increase is not utilised for the increase of circulation (Remarks VII(C) and VIII).

(ii) Prohibition to increase the number of pages, page area and periodicity by reducing circulation within the authorised quota but they are permitted to reduce the number of pages, page area and periodicity for increasing circulation (Remark VIII).

3. (i) Prohibition to use the newsprint quota of one newspaper/periodical for the other newspaper/ periodical in the case of newspapers/periodicals belonging to a Common Ownership Unit (Remark VIII); and (ii) Prohibition to start a new newspaper/periodical by the Common Ownership Unit (Remark VIII); and

4. Denial of newsprint quota to (i) an existing newspaper belonging to a Common Ownership Unit which has not been granted newsprint quota; and (ii) additional newspapers sponsored or acquired by a common Ownership Unit (Remark- X).

5. Prohibition to use white printing paper by the newspapers which have been allotted newsprint (Cl. 3(3A) of the Newsprint Control Order).

That there can be no unlimited right to acquire or use a scarce commodity like newsprint can admit of no doubt. The argument of the petitioners that Government should have accorded greater priority to the import of newsprint to supply the need of all newspaper proprietors to the maximum extent is a matter relating to the policy of import and this Court cannot be propelled into the unchartered ocean of Governmental policy.

Let me first take the general question whether the provisions of the Newsprint Policy and the Newsprint Control Order abridge the freedom of speech.

The freedom of the press is no higher than the, freedom of speech of a citizen under Art. 19(1)(a). Art. 19 does not specifically provide for the freedom of the press as the First Amendment of the Constitution of the U.S.A. does. The freedom of the press is simply an emanation from the concept of fundamental right of the freedom of speech of every citizen (see Pandit M. S. M. Sharma v. Shri Sri Krishna Sinha and Others(1).

(1) [1959] Supp. 1 S.C.R. 806.

803 The respondents contended that the Newsprint Control Order and the Newsprint Policy are concerned with regulating the distribution of newsprint as a scarce commodity, and, if, in regulating the distribution of the commodity, the fundamental right of the freedom of speech is indirectly affected, that is not an abridgment of the freedom of speech, but only an abridgment of speech which is not prohibited by Art. 13(2). In other words, the contention is that the provisions of the Newsprint Control Order as well as those of the Newsprint Policy relate to the regulation and distribution of newsprint as a commodity necessitated by its scarcity and that these provisions are concerned, if at all, with the business activity of the press and have nothing to do with the freedom of speech,- and, even if there is an indirect impingment upon the freedom of speech, it is not an abridgment of that freedom as contemplated by Art. 13(2).

Art. 13(2) provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention of this clause shall, to the extent of the contravention, be void. In the context, what is prohibited by Art. 13(2) is, the making of any law which takes away or abridges the right conferred by Art. 19(1)(a). What Dr. Meiklejohn said of the First Amendment of the Constitution of U.S.A. applies equally to Art. 19(1)(a) read with Art. 13(2). He said:

“That amendment, then, we may take it for granted, does not forbid ‘the abridging of speech. But, at the same time, it does forbid the abridging of the freedom of speech.” (See Political Freedom, p. 21) Art, 19(1)(a) guarantees to the citizens, the fundamental right of the freedom of speech and Art. 19(2) enumerates the type of restrictions which might be imposed by law. It does not follow from this that freedom of expression is not subject to regulations which may not amount to abridgment.

It is a total misconception to say that speech cannot be regulated or that every regulation of speech would be an abridgment of the freedom of speech. In other words, regulation of speech is not inconsistent with the concept of the freedom, of speech unless the regulation amounts to abridgment of that freedom. No freedom, however absolute, can be free from regulation. Though the right under Art.

30(1) is in terms absolute, this Court said In Re the Kerala Education Bill, 1957(1), that the right is subject to reasonable regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales(2) that regulation of trade and commerce is compatible with the absolute freedom of trade and commerce. In fact, the very essence of freedom in an ordered society is regu- (1) [1959] S.C.R. 995.

(2) [1950] A.C. 235, 310.

804 lation. The application of the term ‘-abridge’ is not difficult in many cases but the problem arises in certain types of situations. The important ones are where a regulation is not a direct restriction of expression but is designed to accomplish another objective and the impact upon the expression is secondary or indirect. This problem may appropriately be formalized in terms of defining the key elements, namely, “freedom of speech “abridge” and “law”.

These definitions must be functional in character, derived from the basic considerations underlying a system of freedom of expression (See Thomas I- Emerson, Toward a General Theory of First Amendment(1). As I said, measures which are directed at other forms of activity but which have a secondary, indirect or incidental effect upon expression do not generally abridge the freedom of speech unless the content of, the speech itself is regu lated. Such measures include various types of tax and economic regulations, the imposition of political qualification for obtaining Government employment or any other benefits or privileges, the activities of legislative committees and the political restrictions on rights of aliens. By hypothesis, the regulation imposed is, taken by itself, a legitimate, one, aimed directly at the control of some other activity. The question is its secondary impact upon an admitted area, of expression. This is essentially a problem of determining when the regulation at issue has an effect upon expression which constitutes an abridgment within the meaning of Art.

13(2). In other words, the Court must undertake to define and give content to the word “abridge” in Art. 13(2). This judgment, like the judgment in defining “free speech” must be made in the light of the affirmative theory underlying freedom of expression to which I shall come in a moment, and the various conditions essential to maintaining a workable system. In fact, regular tax measures, economic regulations, social welfare legislation like a general corporation tax, wage and hour legislation, factory laws and similar measures may, of course, have some effect upon freedom of expression when applied to persons or orga- nisations engaged in various forms of communication., But where the burden is the same as that borne by others engaged in different forms of activity, the similar impact on expression seems clearly insufficient to constitute an abridgment of freedom of expression. The use of such measures to control the content of expression would be clearly impermissible as that would be an abridgment of the’ freedom of speech. (see Thomas I. Emerson, Toward a General Theory of First Amendment(1). So also a special tax on press alone, or, a tax exemption available only to those with particular political views or associations would not be permitted (see Alice Lee Gorsjean v. American Press Company (2 ) and Robert Murdock v. Commonwealth of Pennsylvania(3).

“In other words, though the speech itself be under the First Amendment, (1) Yale Law Journal, Vol. 72, 962-63, 877.

(2) [1936] USSC 33; 297 U.S. 233.

(3) [1943] USSC 91; 319 U.S. 105.

805 the manner of its exercise or its, collateral aspects may fall beyond the scope of the amendment”(1). This principles illustrated by the case of Naresh Shridhar Mirajkar and Others v. The State of Maharashtra and Another(2) where the Bombay High Court, by an order, prohibited the publication of the evidence of a witness and the question was, whether the order abridged the fundamental right of the freedom of speech of the petitioner in the case. This Court held by a majority that it did not. Gajendragadkar, C. J. said:

“As we have already indicated, the impunged order was directly concerned with giving such protection to the witness as was thought to be necessary in order to obtain true evidence in the case with a view to do justice between the parties. If, incidentally, as a result of this order, the petitioners were not able to report what they heard in Court, that cannot be said to make the impugned order invalid under Article 19(1)(a) …. Any incidental consequence which may flow from the order will not introduce any constitutional infirmity in it”.

It was said that this dictum of the learned Chief Justice was made under the radiating influence of A. K. Gopalan v.

State of Madras(3) and that the decision has been practically overruled by Bank Nationalization Case (4). 1 do not wish to enter the controvercial thicket as to the extent to which the principle laid down in Gopalan’s case(3) has been eroded by the Bank Nationalisation case (4). I need only say that in the area of free speech, the principle I have stated is well established. The principle was applied by this Court in Express Newspapers Private Ltd. and Another v. The Union of India and others(5). There the question was whether the provisions of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, violated the fundamental night of the ‘petitioner under Art. 19(1)(a). The argument was that the decision of the Wage Board in fixing the rates and scales of wages without any consideration whatsoever as to the capacity of the newspaper industry to pay the same, imposed too heavy a financial burden on the industry and, had disabled it from exercising its fundamental right of the freedom. of, speech.

But the Court said:

“The impugned Act,, judged by its provisions, was not such, a law but was a beneficient legislation intended to regulate the conditions of service of the working journalists and the consequences aforesaid could not be the (1) William J. Brennan, Jr., “The Supreme Court and the Meiklejohn Interpretation of the First Amendment,” Harvard Law.Review, Vol. 79, No.1 p.1 (2) (1966) 3 S.C.R.744,762.

(3) (1960) S.C.R. 88.

(4) (1970) 3 S.C.R. 532.

(5) (1959) S.C.R. 12.

806 direct and inevitable result of it. Although, there could be no doubt that it directly affected the press and fell outside the categories of protection mentioned in Art.

19(2), it had not the effect of taking away or abridging the freedom of speech and expression of the petitioner and did not, therefore, infringe Art. 19(1)(a) of the Constitution.” The same principle finds expression in the decision in U. S.

v. O’ Brien(1) where the U.S. Supreme Court said that even assuming that the alleged communicative element in the burning of the Selective Service Certificate is sufficient to bring into play the freedom of speech, it combines both ‘speech’ and ‘non-speech’ ‘elements, and when speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on the freedom of speech. The Court further obseved that a government regulation is sufficiently justi- fied if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression and the freedom of speech is no greater than is essential to the furtherance of that interest.

In Sakal Papers (P) Ltd. and others v. Union of India(2) this Court was concerned with the validity of the Newspaper (Price and Page) Act, 1956, and Daily Newspaper (Price and Page) Order, 1960. The whole subject matter fell directly under Art.’ 19(1)(a). It was not a case where the impingement on the freedom of speech was indirect. The legislation in that case directly restricted circulation of newspapers. The direct effect of the legislation, in other words, was to abridge the freedom of speech by curtailing circulation. The learned judges, after referring to the Express Newspaper case(3) said that the impugned law, far from being one which merely interfered with the right of freedom of speech incidentally, did so directly.

Mr. Palkhiwala, appearing for the petitioners in Writ Petition No. 334 of 1971, submitted that the true test to decide Whether the freedom of speech of the petitioners has, been abridged is to see what is the direct effect of the Newsprint Control Order and the Newsprint Policy. He submitted that it is neither their pith and substance nor their subject matter that should be taken into consideration for deciding the question whether they operate to abridge the freedom of speech. but their direct effect. The question to be asked and answered, according to counsel is, what is the direct effect of the Newsprint Control Order and the Newsprint Policy ? (1) [1968] USSC 116; 391 U.S. 367. (2) [1961] INSC 281; [1962] 3 S.C.R. 842, 866.

(3) [1959] S.C.R. 12.

807 If, on account of scarcity of newsprint, it is not possible,, on an equitable distribution, to allot to the petitioners, newsprint to the extent necessary to maintain the present circulation of the newspapers owned by them with same page level and, as a result, the circulation of the newspapers or their page level has to be reduced, could it be contended that there has been abridgment of the freedom of speech ? Surely, the reduction in page level or circulation is the direct result of the diminished supply of newsprint. Yet, I do not think that anybody Will say that there is an abridgement of the freedom of speech of the petitioners. There might be an abridgement of speech, but not an abridgment of the, freedom of speech.

The pith and substance test, although not strictly appropriate, might serve a useful purpose in the process of deciding whether the provisions in question which work some interference with the freedom of speech are essentially regulatory in character (see the observation of Lord Porter in Commonwealth of Australia v.Bank of New South Wales(.’)).

With this background, let me proceed to consider more speci- fically the arguments of the petitioners.

It was contended for the petitioners that the newsprint policy which fixes a 10-page ceiling for calculation of newsprint quota for their dailies which had a page level above ten directly abridges their fundamental right of free speech and that the provision of the Newsprint Policy_ which provides for 20 per cent increase in the number of pages to daily newspapers within the ceiling of 10 pages off-.ends Art. 14.

Before 1972-73, the newsprint, allocation policy was based on the page level of 1957 coupled with the circulation figures of 1961-62, and all entitlements were calculated, with allowable increases and adjustments, from year to year on that basis. As a result, the newspapers which entered the field after 1962-63 were at a disadvantage and were pegged to their own lower page and circulation level. There were many papers specially in the Indian Languages group where the actual circulation even during 1970-71 exceeded the notional circulation figure which was arrived at cumulatively based on the 1961-62 figures. The result of the previous policies was that some news papers which had already a very large circulation at the time of introduction of newsprint rationing and were not interested in in- creasing circulation substantially were able to use the newsprint allotted to them so as to increase the number of pages. On the other hand, the newspapers which were at a lower level of circulation but had the potential to increase the readership were restricted to the ad hoc percentage (1) [1950] A.C. 235, 312-3.

808 increase allowed under those policies but were unable, at the same time to increase the number of their pages as they could not afford to cut down the existing circulation. The growth of such newspapers was, therefore, affected by the prior newsprint allocation policies. The Newsprint Policy in question seeks to remedy this situation. It recognises the circulation of all newspapers big and small as of 1970- 71 and provides for a small growth rate. 1970-71 is taken as the base year because, with the events in Bangla Desh, Indo- Pak hostilities and the State elections, the circulation figures for 1971-72 would not represent the circulation figures of a normal year.

The fixation of 10-page ceiling for the calculation of newsprint quota has, among the big newspapers, affected 22 newspapers which , prior to the policy for 1972-73, were actually operating on a page-level above 10.

The Union of India justifies the reduction in the page level of these papers to 10 on three principal grounds : (1) that these papers devote proportionately high percentage of space for advertisements at high rates and that the cut in pages ‘imposed would not be felt by them if they rationalise their working and adjust their advertisement space; (2) that the imposition of cut in the pages was necessary on account of the short supply of 11,000 tonnes of newsprint due to suspension of U.S. Aid and (3) that the cut was necessary to have fair and equitable distribution of newsprint amongst all newspapers and periodicals.

The objectives sought to be achieved. by. the Newsprint Policy are : (1) to correct the inequity of the previous newsprint allocation policies as a result of which the newspapers which had high page level in 1957 got unfair advantage over the newspapers which were started thereafter and (2) to help the newspapers operating below 10 pages to achieve, a 10 page level by 20 per cent increase in growth rate so as to enable them to attain a position of equality with those which were operating above 10-page level in 1970- 71.

It may be recalled that the Newsprint Policy provides for fixation of basic entitlement for newspapers whose actual number of pages was more than 10 during 1970-71 and 1971-72 on the basis of (1) an average of 10 pages, and (2) either the average circulation in 1970 or admissible circulation in 1971-72, plus, increase admissible under the policy of 1971-

72. whichever is greater. Fixation of page level for calculating the entitlement of quota for a newspaper is not a new feature.. The previous policies provided inter alia that, a location would be calculated on the basis of a page level upto 12 pages and restricted to an increase of not more than 2 pages at a time. Therefore, even under the prior policies, the newsprint allocation was calculated on the basis of a maximum 809 page level which was 12 pages as mentioned above, except in the case of six newspapers whose page level in 1957 was more than 12 pages.

Dailies are classified as ‘big’, ‘medium’ and ‘small’. A newspaper With a circulation of over 50,000 is ‘big’, that with a circulation ranging from 15,000 to 50,000 is ‘medium’ and that with a circulation below 15,000 is ‘small’. The average page number of big dailies was 10.3. Out of the 45 big dailies, 23 operated on a page level of less than 10 pages and 22 operated on a page level of more than 10. The average page level of all the dailies was 5.8. Out of the 45 big dailies, 30 are language, and 15 English. All the 15 big dailies in English operated on an average page level over 10 and their average page level was 13.45. Even the medium English dailies operated on a page level over 10 and the average of their page level was 11. 08.

The Government contended that the effect of the policy of allowing page increase and circulation increase from time to time has been to help the growth of press; that this is how papers like Anand Bazar Patrika Jugantar and Deccan Herald (English) have come to the present level of circulation and that newspaper proprietors in India including the petitioners have unanimously recommended to the Government in January, 1969, that a page level of 8 should be the national minimum requirement for a medium of information and that it should be permitted to reach as wide a public as possible.

To examine the question whether Newsprint Policy is directed against the big dailies and is calculated to strangle them and whether it would offend their fundamental rights under Art. 14 and 19 (1) (a), it is necessary to have an idea as to what are the objects sought to be achieved by the freedom of speech and how they could be achieved. It is also necessary to have some notion about the concept of equality in the distribution of a scare commodity like newsprint.

The freedom of speech is a concept which was transplanted into our Constitution from the First Amendment to the Constitution of U.S.A. In Express, Newspapers case(1) this Court observed “It is trite to, observe that the fundamental right to the freedom of speech and expression enshrined in Art. 19 (1)(a) of our Constitution is based on these provisions in Amendment 1 of the Constitution of the United States of America…..

(1) (1959) S.C.R. 12.

810 As to what the ‘freedom of speech’ means there is no unanimity A among the jurists. Writing in the Federalist Papers(1), Alexander Hamilton observed :

“On the subject of the liberty of the press, as much as has been said, 1 cannot forbear adding a remark or two 1 contend that whatever has been said about it amounts to nothing. What signifies a declaration that “the liberty of the press shall be inviolably preserved” ? What is the liberty of the Press ? Who can eve it any definition which would not leave the utmost latitude for evasion ? I hold it to be impracticable Professor Chafee said (2 ) :

“The truth is, I think, that the framers had no very clear idea as to what they meant by “the freedom of speech or of the press” but we can say with reasonable assurance …. that the freedom which Congress was forbidden to abridge was not, for them.’ some absolute concept which had never existed on earth.” What Lincoln said on liberty is relevant here:

“The world has never had a good definition of [it]”.

Justice Holmes gave at different times opposite interpretations of the historic meaning of the First Amendment. Speaking for himself and Justice Brandeis, he observed :(3) “History seems to me against the notion (that) the First Amendment left the common law of seditious libel in force.” A few years earlier, he had written for the Court “(T)he main purpose of such constitutional provisions ‘to prevent all such previous restraints… as had been practices by other governments,’ and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare”.

In this statement Holmes had the support of Cooley, who maintained that its Blackstonian outlook “has been followed by American commentators of standard authority as embodying correctly the idea incorporated in the constitutional law of the country by the provisions in the American Bill of Rights.” The values sought by society in protecting the right to the freedom of speech would fall into four broad categories.

Free expression is necessary : (1) for individual fulfilment, (2) for attainment of truth, (3) for participation by members of the society (1) The Federalist, No. 84, at p. 514.

(2) Chafee, Book Review, 62, Harvard Law Review, 891, 898.

(3) Abrams v. U.S., [1919] USSC 206; 250 U.S. 616, 630.

(4) Patterson v. Colorado, 215 U.S. 454, 462.

811 in political or social decision making and (4)- for maintaining the balance ‘between stability and change in society. In the traditional theory, freedom of expression is not only an individual good, but a social good. It is the best process for advancing knowledge and discovering truth. The theory contemplates more than a process of individual judgment. It asserts that the process is also the best method to reach a general or social judgment. In a democracy the theory is that all men are entitled to participate in the process of formulating- common decisions.

(see Thomas I. Emerson, Toward a General Theory of First Amendment) (supra). The crucial point is not that freedom of expression is politically useful but that it is indispensable to the operation of a democratic system. In a democracy the basic premise is that the people are both the governors and the governed. In order that governed may form intelligent and wise judgment it is necessary that they must be appraised of all the aspects of a question on which a decision has to be taken so that they might arrive at the truth. And this is why Justice Holmes said in Abrams v.

United States (supra) “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.” Judge Learned Hand said that the newspaper industry serves one of the most vital of all general interests, namely, the dissemination of news from as many different sources, and with as many different facets and colours as is possible;

that the freedom of speech presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection (see United States v. Associated Press). (1) The same sentiment was echoed by Justice Black when he said that the freedom of speech rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public (Associated v. United States(2) But this fundamental presupposition is seriously weakened by concentration of power. Instead of several views of the facts and several conflicting opinions, newspaper readers in many cities, or, still worse, in wide regions, may get only a single set of facts and a single body of opinion, all emanating from one or two owners.(3) Our Constitutional law has been singularly indifferent (1) 52 Federal Supplement 362, 372. (So Dist. N.Y. (1943).

(2) 326 U.S. Reports 1, 20 (1945).

(3) See Zechariah Chafee, Jr., Government and Mass Communications, Vol. 1, pp. 24-25.

812 to the reality and implications of non-governmental obstructions to the spread, of political truth.’ This indifference becomes critical when a comparatively few private hands are in a position to determine not only the content of information but its very availability (see Jerome A. Barren, “Access to the Press”-A New First Amendment Right”).(1) With the concentration of mass media in a few hands, the chance of an idea antagonistic to the idea of the, proprietors of the big newspapers getting access to the market has become very remote. It is no use having a right to express your idea, unless you have ,got a medium for expressing it. The concept of a free market for ideas presupposes that every type of ideas will get into the market and if free access to the market is denied for any ideas, to that extent, the process of competition becomes limited and the chance of all the ideas coming to the market is removed. There can be no doubt that any mass medium having the greatest circulation will influence the political life of the country because the ideal for which the paper stands has got the greatest chance of getting itself known to the public. It will also affect the economic pattern of the society. Whether or not the modern big newspaper is the cultural arm of the industry, it has an interest in the present method of production and distribution, as it subsists mainly upon advertisement.

The Mahalanobic Committee on Distribution of Income and Levels of Living, in its report has, after stating that economic power is exercised also through control over mass media of communication, said “Of these, newspapers are the, most important and constitute a powerful ancillary to sectoral and group interests. It is not, therefore, a matter for surprise that there is so much inter-linking between newspapers and big business in this country, with newspapers controlled to a substantial extent by selected industrial houses directly through ownership as well as indirectly through membership of their boards of directors. In addition of course, there is the indirect control exercised through expenditure on advertisement which has been growing apace during the Plan periods. In a study of concentration of economic power in India, one must take into account this link between industry and newspapers which exists in our country to a much larger extent than is found in any of the other democratic countries in the world.” (1) Harvard Law Review, Vol. 80, 1641, 1643.

(2) Report of the Committee on Distribution of income and levels of Living, Part I, pp.

51-52.

813 If ever there was a self-operating, market of ideas, as Justice Holmes assumed, it has long since ceased to exist with the concentration of mass ,media in- few hands.

Protection against government is not enough to guarantee that a man who has something to say will have a chance to say it. The owners and the managers of the press determine which persons, which facts, which version of facts, which ideas shall reach the public. Through concentration of ownership, the variety of sources of news and opinion has become limited. At the same time, the citizen’s need for variety and new opinions has increased. He is entirely dependent on the quality, proportion and extent of his news supply,-the materials for the discharge of his duties as a citizen and a judge of public affairs-on a few newspapers.

The Press Commission has observed in its report (Part 1, p.

3 1 0) that since the essence of the process of formation of opinion is that the public must have an opportunity of studying various points of view and that the exclusive and continuous advocacy of one point of view through the medium of a newspaper which holds a monopolistic position is not conducive to the formation of healthy opinion, diversity of opinion should be promoted in the interest of free discussion of public affairs, The mass media’s development of an antepathy to ideas anta- gonistic to theirs or novel or unpopular ideas, unorthodox points of view which have no claim for expression in their papers makes the theory of market place of ideas too unrealistic. The problem is how to bring all ideas into the market and make the concept of freedom of speech a live one having its roots in reality. A realistic view of our freedom of expression requires the recognition that right of expression is somewhat thin if it-can be exercised only on the sufferance of the managers of the leading newspapers.

The freedom of speech, if it has to fulfil its historic mission, namely, the spreading of political truth and the widest dissemination of news, must be a freedom for all citizens in the country. “What is essential” according to Meiklejohn, “is not that everyone shall speak but that every thing worth saying shall be said”.(1) If media are unavailable for most of the speakers, can the minds of the hearers be reached effectively? It is here that creation of new opportunities for expression or greater opportunities to small and medium dailies to reach a position of equality with the big ones, is as important as the right to express ideas without fear of governmental restraint. It is only the new media of communication that can lay sentiments before the public and it is they rather than the government who can most effectively abridge expression by nullifying the opportunity for an idea to win acceptance. As a con- stitutional theory for communication of ideas, laissez faire is manifestly irrelevant (see Barren, Access to Press).(2) What is, therefore, required is an interpretation of Art.

19 (1) (a) which focuses (1) Political Freedom, p. 26. (2) Harvard Law Review, Vol.

80, 1641.

814 on the idea that restraining the hand of the government is quite useless in assuring free speech, if a restraint on access is effectively secured by private groups. A constitutional prohibition against governmental restriction on the expression is effective only if the Constitution ensures an adequate opportunity for discussion.

Any scheme of distribution of newsprint which. would make the freedom of speech a reality by making it possible the dissemination of ideas as news with as many different facets and colours as possible would not violate the fundamental right of ‘the freedom of speech of the petitioners. In other words, a scheme for distribution of a commodity like newsprint which will subserve the purpose of free flow of ideas to the market from as many different sources as possible would be a step to advance and enrich that freedom.

If the scheme of distribution is calculated to prevent even an oligopoly ruling the market and thus check the tendency to monopoly in the market, that will not be open to any objection on the ground that the scheme involves a regulation of the press which would amount to an abridgment of the freedom of speech (see Citizen Publishing’ Co. v.

United States).(1) Promoting effective competition of ideas in the market alone will ensure the emergence of truth out of the competition; at any rate that is the basis underlying the guarantee of free speech, and any distribution of newsprint calculated to promote competition by making the competitors equal in strength cannot but be characterized as a scheme to advance the freedom. One cannot promote competition by making the strong among the competitors stronger or the tall taller but by making the weak among them strong and the short tall. So, even if the scheme of distribution aims at making dailies with smaller page-level and less circulation attain a position of’ equality in respect of page level and circulation with those, having a page level of 10 and enjoying greater circulation, that would not, in any way, be open to objection on the ground of violation of Art. 19 (1) (a). I am unable to understand how the fixation of a maximum page level of 10 for calculation of quota of newsprint would offend the fundamental right of the freedom of speech of the petitioners. In any scheme of distribution of a scarce com- modity, there must be some basis on which the entitlement should be calculated. It is because newsprint is scarce that it is being rationed. Ex-hypothesi, newsprint cannot be distributed according to the needs of every consumer.

The freedom of speech does not mean a right to obtain or use an unlimited quantity of newsprint. Art. 19 (1) (a) is not a guardian of unlimited talkativeness’. The average page level of all the dailies was 58. The Union of India contends that the petitioners themselves recommended a national minimum page level of 8 for dailies and that, but for the inordinate space devoted to commercial advertisement, 10 pages for a (1) [1969] USSC 49; 394 U.S. 131.

815 daily would be sufficient to express its views and publish the news and that the petitioners beat the big bass drum of Art. 19 (1) (a). not because their freedom of expression is abridged, but that they are deprived of a part of the revenue from commercial advertisement.

It is settled by the decision of this Court in Hamdard Dawa- khana (Wakf) Lal Kuan, Delhi & Another v. Union of India and Others(1) that commercial advertisement does not come within the ambit of the freedom of speech guaranteed by Art. 19(1) (a). I have already indicated that 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 abridgement of it.

It has been said that in the scheme of distribution of news- print, unequals have been treated equally and therefore, the Newsprint Policy violates Art’ 14 of the Constitution. To decide this question regard must be had to the criteria to be adopted in distributing the material resources of a community. Arguments about equality in this sphere are really arguments about the criteria of relevance. The difficulties involved in developing such criteria have occupied philosophers for centuries. Despite the refinements that distinguish the theories of various philosophers., most such theories represent variations on two basic notions of equality : numerical equality and proportional equality. The contrast between the two notions is illustrated by the difference between the right to an equal distribution of things and the equal- right with respect to a distribution of such things. According to the former, each individual is to receive numerically identical amounts of the benefit being distributed or the burden imposed in the public sector, whereas the latter means only that all will receive the same consideration in the distributional decision, but that the numerical amounts distributed may differ. Proportional equality means equality in the distribution according to merit or distribution- according to need (see Developments-Equal Protection). (2) But the Supreme Court of U.S.A. has departed froth this traditional aproach in the matter of equality and has adopted a more dynamic concept as illustrated by the decision in Griffin v. Illinois(“) and Douglas v. California. (4) In these cases it was held that the State has an affirmative duty to make compensatory legislation in order to make men equal who are really, unequal has undergone radical other words, the traditional doctrine that the Court is concerned with formal equality before the law and is not concerned to make men equal who are really unequal has under gone radical (1) [1959] INSC 157; [1960] 2 S.C.R. 671, 688-90 (2) Harvard Law Review, Vol. 82, p. 1165.

(3) [1956] USSC 64; 351 U.S. 12.

(4) [1963] USSC 85; 372 U.S. 353.

816 change in the recent years as illustrated by these cases.

Justice Harlan dissented both in Griffin’s case and Douglas’ case and his dissenting opinion in the former case reveals the traditional and the hew approaches and also highlights the length to which the majority has, gone :

“The Court thus holds that, at least in this area of criminal appeals, the Equal Protection Clause imposes on the States an affirmative duty to lift the handicaps flowing from differences in economic circumstances. That holding produces the anomalous result that a constitutional admonition to the States to treat all persons equally means in this instance that Illinois must give to some what is requires others to pay for…. It may as accurately be said that the real issue in this case is not whether Illinois has discriminated but whether it has a duty to discriminate.” The crucial question today, as regards Art. 14, is whether the command implicit in it constitutes merely a ban on the creation of inequalities by the State, or, a command, as well, to eliminate inequalities existing without any contribution thereto by State action. The answer to this question, has already been given in the United States under the equal protection clause in the two cases referred to, in certain areas. The Court, in effect, has began to require the State to adopt a standard which takes into account the differing economic and social conditions of its citizens, whenever these differences stand in the way of equal access to the exercise of their basic rights. It has been said that justice is the effort of man to mitigate the inequality of men. The whole drive of the directive principles of the Constitution is toward this goal and it is in consonance with the new concept of equality. The, only norm which the Constitution furnishes for distribution of the material resources of the community is the elastic norm of the common good [see Art. 39 (b) 1] 1 do not think I can say that the principle adopted for the distribution of newsprint is not for the common good.

That apart, one of the objects of the Newsprint Policy was to. remedy the inequality created by. the previous policies and to enable the dailies having less than 10 pages attain a position of equality with those operating on a page level of 10 or more. I think the allowance of 20 per cent increase for growth in page-level provided in Remark VII is based on a classification and that the classification is grounded on an intelligible differential. having a nexus to the object sought to be achieved.

By, far the, most fundamental attack made by counsel for the petitioners was that levelled against the provision in Remark VIII which provides that within the quantity of newsprint authorised 817 for the licensing period, each newspaper/periodical will be free to increase circulation by reducing the number of pages, page area and periodicity, but will not be free to increase the number of pages, page area and periodicity by reducting circulation, to meet its individual requirements.

It was contended that this is direct inroad upon the freedom of speech and that by-no stretch of imagination can it be characterized as newsprint control The argument was that when once the quota has been determined and allotted, further direct-ions as regards circulation or page number is nothing but brazen-faced trespass into the domain of the guaranteed freedom. It was said that once the quota has been fixed and allotted, the control over newsprint as a commodity was over and any stipulation as regards its utilisation thereafter can only sound in the realm of abridgment of the freedom of speech.

Now, let me examine this argument with the respect which it deserves. If the entitlement of a consumer of newsprint is calculated on the basis of page-level and circulation of the newspaper, I think it would be an integral part of any system of rationing to tell the consumer that he should maintain the page level and circulation of the paper. That apart, as Meiklejohn said-and that, is plain commonsense- “First, let it be noted, that by these words (First Amendment) Congress is not debarred from all action upon freedom of speech. Legislation which abridges that freedom is forbidden, but not legislation to enlarge and enrich it.”(1) These remarks apply with equal force to Art. 1 9 (1 ) (a) read with Art. 13(2). Any law or executive action which advances the freedom of speech cannot be considered as an abridgment of it. The provision in question does not say that the proprietor or publisher of a newspaper should reduce its circulation. If the provision had said that the proprietor or publisher must reduce the circulation of the newspaper, one could have understood a complaint of abridgment of the freedom of speech. The provision, in effect, only tells the proprietor/publisher of the newspaper: “maintain the circulation at the present level or increase if it you like by reducing the page lever’. Would this amount to an abridgment of the freedom of speech? I think not. The freedom of speech is only enriched and enlarged.

it was contended that a proprietor/publisher of a newspaper has the undoubted freedom to increase its page level within the authorised quota and the provision in question, by insisting that page level should-not be increased by reducing circulation, has interfered with that freedom. It was argued that if the provision in question had not insisted upon maintaining the circulation at the present level, the publisher could have reduced the circulation of the newspaper and increased the number of its pages and, increas- (1) See Political Freedom, p. 19.

818 ing the number of pages at the expense of circulation is a matter of freedom included within the concept of the freedom of speech. I cannot agree. Suppose, the provision in the Newsprint Policy had simply said that the proprietor of a newspaper is not allowed to reduce its present circulation and stopped there ? What would have been the effect ? The effect would have been the same, namely, that the proprietor would not have been entitled to increase the page level of the newspaper within the authorised quota. The incidental effect of the direction to maintain the circulation or increase it would be to tell the proprietor or publisher riot; to increase the number of its pages. If the Newsprint Policy could legitimately say, without abridging the freedom of speech, that a newspaper should maintain its present circulation, the fact that it also said that it, should not increase its page level and reduce circulation would not in any way affect the question. If telling a publisher or proprietor to maintain the circulation of a newspaper or increase it, is not an abridgment of the freedom of speech, the further express direction in the Newsprint Policy not to increase its page-level within the authorised quota would not be an abridgment of the freedom, of speech as it is an implied consequence of- the- direction to maintain the circulation.

The matter can be looked at from another angle. The consti- tutional guarantee of the freedom of speech is not so much for the benefit of the press as it is for the benefit of the public. The freedom of speech includes within its compass the right of all citizens to read and be informed. In Time v. Hill(1) the U.S. Supreme Court said:

“The constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people.” In Griswold v. Connecticut(2) the, U.S. Supreme Court was of the opinion that the right of freedom of speech and press includes not only the right to utter or to print, but the right to read.

As I said. the freedom of speech protects two kinds of interest. There is an individual interest, the need of men to express their opinion on matters vital to them and a social interest in the attainment of truth so that the country may not only accept the wisest course but carry it out in the wisest way. “Now, in the method of political Government, the point of ultimate interest is not the words of the speakers, but the minds of hearers…. The welfare of the community requires that those who decide issues shall understand them”(3). “The general principles underlying first amendment safeguards may, for present purposes, be reduced to three judicially recognized specifics. First, Professor Alexander.

(1) [1967] USSC 11; 385 U.S. 374. (2) [1965] USSC 128; 381 U,S. 479, 482.

(3) Meiklejohn, Political Freedom P. 26.

819 Meiklejohn’s assertion that the first amendment was intended to define not an individual right to speak, but rather, a community right to hear has been assumed by modem constitutional decision (Rosenblatt v. Baer(1), Lamont v.

Postmaster General (2) Roth v. United States(3), Stromberg v. California(4)”(see Paul Goddstein, Copyright and the First Amendment(5). That the right of the public to-hear is within the concept of the freedom of speech is also clear from the pioneering opinion of Justice Burger, as he then was, in Office of Communication of United Church of Christ v. F. C.C.(6). The learned judge emphasised principally the primary status of “the right of the public to be informed, rather than any right of the Government, any broadcasting licencee or any individual member of the public to broadcast his own particular views on any matter.” If the right of the public to hear and be informed is also within the concept of the freedom of speech, the government, when it insists upon, the newspapers concerned maintaining their present level of circulation does not abridge the freedom of speech but only enriches and enlarges it. In other words, under the theory of the freedom of speech which recognises not only the right of the citizens to speak but also the right of the community to hear, a policy in the distribution of newsprint for maintenance of circulation at its higher possible level, as it furthers the right of the community to hear, will only advance and enrich that freedom.

At present, our circulation is only 1.3 copies for every 100 people and 4.6 copies for every 100 literates in the country. Circulation must be doubled if the press is to reach ‘all the literates in the country. This is a sufficient justification for a circulation oriented policy.

Newsprint which is in short supply must be used so as to help to achieve the widest possible dissemination of news and at the same time meet the demands of the press as a whole.

Under Art. 41 of the Constitution the State has a duty to take effective steps to educate the people within limits of its available economic resources. That includes political education also.

Public discussion of public issues together with the spreading of information and any opinion on these issues is supposed to be the main function of newspaper. The highest and lowest in the scale of intelligence resort to its columns for information. Newspaper is the most potent means for educating the people as it is read by those who read nothing else and, in politics, the common in an gets his education mostly from newspaper.

(1) 383 U.S. 74, 94-95.

(2) [1965] USSC 134; 381 U.S. 301.

(3) [1957] USSC 100; 354 U.S. 476, 484.

(4) [1931] USSC 132; 283 U.S. 359, 369.

(5) Columbia Law Review, Vol. 70, 983, 989.

(6) Federal Reporter, 359, 2nd series, 994.

820 The affirmative obligation of the Government to permit the import of newsprint by expending foreign exchange in that behalf is not only because press has a fundamental right to express itself, but also because the community has a right to be supplied with information. and the Government a duty to educate the people within the limits of its resources.

The Government may, under cl. 3 of the Imports (Control) Order, 1955 totally prohibit the import of newsprint and thus disable any person from carrying on a business in newsprint, it is in the general interest of the public not to expend any foreign exchange on that score. If the affirmative obligation to expend foreign exchange and permit the import of newsprint stems from the need of the community for information and the fundamental duty of Government to educate the people as also to satisfy the individual need for self expression, it is not for the proprietor of a newspaper alone to say that he will reduce the circulation of the newspaper and increase its page level, as the community has an interest in maintaining or increasing circulation of the newspapers. It is said that a proprietor of a newspaper has the freedom to cater to the needs of intellectual highbrows who may choose to browse in rich pastures and for that he would require more pages for a newspaper and that it would be a denial of his fundamental right if he were told that he cannot curtail the circulation and increase the pages. A claim to enlarge the volume of speech by diminishing the circulation raises the problem of reconciling the citizens’ right to unfettered exercise of speech in volume with the community’s right to undiminished circulation. Both rights fall within the ambit of the concept of freedom of speech as explained above. I would prefer to give more weight to the community’s claim here especially as I think that the claim to enlarge the volume of speech at the expense of circulation is not for exercising the freedom of speech guaranteed by Art. 19(1)(a) but for commercial advertisement for revenue which will not fall within the ambit of that sub-article.

In every society, there are many interests. held in varying degrees, by individuals and groups, viz., the interest in, valuing of, or concern, for free speech, peace, quiet, protection of property, fair trial, education, national security, good highways, a decent minimum wage, etc. “The attainment of freedom of expression is not the sole aim of the good society. As the private right of the individual, freedom of expression is an end in itself, but it is not the only end of man as an individual. In its social and political aspects, freedom of expression is primarily a process or a method for reaching other goals. It is a basic element. in the democratic way of life, and as a vital process it shapes and determines the ends of democratic society. But it is not through this process alone that a democratic society will attain its ultimate ends”(1).

(1) See Thomas 1, Emerson, Toward a General Theory of’ the First Amendment Yale Law Journal, Vol. 72, 1962-63. 877, 907.

821 Therefore, any theory of freedom of expression must take into account other values such as justice, equality, moral progress, the right of tile public to education arising from the affirmative duty cast on the Government by the directive principles to educate the people, apart from the right of the community to read and be informed arising under the theory of the freedom of speech itself. Art. 19(2) is concerned with laws restricting or abridging the freedom of speech for protecting the more important values. It has nothing to do with regulation as to the, manner or method of speech, including its volume, when that regulation does not touch or concern the content of speech, and when it is intended or calculated to subserve or promote some paramount social interest(1). The question then is whether the Government could, in the distribution of newsprint, insist on the widest circulation possible to subserve the right of the people to be educated in opposition to the right of the proprietor or publisher to reduce the circulation and enlarge the page number. As I said, any regulation not intended to control the content of speech but incidentally limiting its unfettered exercise will not be regarded as an abridgment of the freedom of speech, if there is a valid governmental interest arising from its duty to educate the people and the value of the public of the end which the regulation seeks to achieve is more than the individual and social interest in the unfettered exercise in volume of the right of free speech. The formula in such cases is that the Court must, balance the individual and social interest in freedom of expression against the social interest sought by the regulation which restricts expression (supra).

In Konigsberg v. State Bar(2), Justice Harlan speaking for the majority observed:, .lm15 “. . . . . . . On the other hand, general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First Fourteenth Amendment forbade Congress or the State to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved. See e.g. Schneider v. State, [1939] USSC 134; 308 U.S. 147, 161;

Cox v. New Hampshire; [1941] USSC 78; 312 U.S. 569; Prince v. Massachusetts, [1944] USSC 52; 321 U.S. 158; Kovacs v. Cooper, [1949] USSC 22; 336 U.S. 77; American Communications Assn. v. Douds, [1950] USSC 56; 339 U.S. 382; Breard v.

Alexandria [1951] USSC 69; 341 U.S. 622.” It was contended on behalf of the petitioners that prohibition of interchangeability of quota between different newspaper,-, (1) Criminal Appeal No. 152 of 1970 decided on 15-9-1972.

(2) [1961] USSC 73; 366 U.S. 36, 50.

822 owned by a common ownership unit, or different editions of the same newspaper owned by that unit is an abridgment of their fundamental right under Art. 19(1)(a). A common ownership unit is defined to mean a newspaper establishment or concern owning two or more newspapers including at least one daily irrespective of the centers of publication and language of such papers. The newsprint is allotted to a newspaper. In other words, the unit of allotment is a newspaper. Clause 2(a) of the Newsprint Control Order defines “consumer of newsprint”:

“consumer of newsprint means a printer or pub- lisher of newspapers, periodicals, text books or books of general interest who uses newsprint.” The printer or publisher of each newspaper owned by a common ownership unit is a separate consumer and it is to that consumer that the quota is allotted. The application for quota made by the common ownership unit specifies the entitlement of each newspaper owned by it, and quota is granted to each newspaper on that basis. If it were open to a common ownership unit to use the quota allotted for one newspaper owned by it for another newspaper,, or, for a different edition of the same newspaper, that would frustrate the whole scheme of rationing. If a common ownership unit were to use the quota allotted to one newspaper for another newspaper owned by it, could discontinue one newspaper and use its quota for another and thus secure an advantage over individual units owning only one newspaper. It is on the basis of page level and circulation that quota is allotted to a newspaper and to say that it is open to a common ownership unit to use the quota for a different newspaper owned by it or a different edition of the same newspaper would be tantamount to saying that since the common ownership unit gets the ownership of the quota, it can use the quota for a newspaper owned even by a different proprietor. I do not think that the prohibition against interchangeability of quota among different newspapers owned by a common ownership unit is violative of Art. 19 (1) (a). In my opinion, prohibition of interchangeability has nothing to do with Art. 19(1)(a).

That a commodity rationed to a Unit must be utilized by that Unit and no other unit is, I think, a regulation necessary for the successful working of any system of rationing.

It was then contended for the petitioners that a common ownership unit is not permitted to start a new newspaper or a new edition of an existing newspaper even out of their authorized quota whereas a person owning no other newspaper can start a newspaper and obtain a quota for the same, and that this offends the fundamental right under Art. 19(1)(a) of the common ownership units. That there is a valid classification between a person owning no newspaper and a common ownership unit owning two or more newspapers cannot be denied. Any person desiring to 823 express himself by the medium of a newspaper cannot be denied an opportunity for the same. The right guaranteed under Art. 19 (1)(a) has an essentially individual aspect.

A common ownership unit has already been given the opportunity to express itself by the media of two or more newspapers. If a common ownership unit were to go on acquiring or sponsoring new newspapers and if the claim for quota for all the newspapers is admitted, that would result in concentration of newspaper ownership and will accelerate the tendency toward monopoly in the newspaper industry.

When the prohibition against interchangeability of newsprint quota between or among the newspapers owned by a common ownership unit is found valid, the restriction imposed on common ownership unit to bring out a new newspaper from its authorised quota must be held to be valid and not offending Art. 19(1) (a). If the quota allotted for a newspaper owned by the common ownership unit cannot be used for any other newspaper, it stands to reason to hold that the prohibition against bringing out a new newspaper cannot be challenged as violative of Art. 19(1) (a). No doubt, if the system of rationing were not there, it would be open to any person to own or conduct any number of newspapers but, since the quantity of newsprint available for distribution is limited, any system of rationing must place some limitation upon the right of a person to express himself through newspapers.

Mr. M. K. Nambiar, appearing for “The Hindu”, contended that the Newsprint Policy is not law, that it is only an adminis- trative direction with no statutory backing and so, the restrictions which the policy impose are not binding.

The Newsprint Policy was issued by the Central Government, and the Chief Controller of Imports and Exports, as Additional Secretary to Government, has authenticated it.

The Newsprint policy was placed before both the Houses of Parliament. In Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, etc.(1) this Court said :

authorities in the matter of granting import licences, the Central Government issued certain administrative instructions to be followed by the licensing authorities.” The Import Trade Policy has been characterized as a notice giving information to the public as to the principle governing, the issue of licence for import of goods for a specified period (see East India Commercial Co. Ltd.

Calcutta and Another v. The Collector of Customs, Calcutta(2): Shah, J. speaking for the Court in Union of India and Others v. M/s. Indo Afghan Agencies Ltd. 3 ) said:

(1) [1965] INSC 140; [1966] 1 S.C.R. 262, 266-68.

(2) [1962] INSC 199; [1963] 3 S.C.R. 338, 371-2.

(3) [1967] INSC 267; (1968) 2 S.C.R. 366, 377.

824 .lm15 Court has held that Courts have the power in appropriate cases to compel performance of the obligations imposed by the schemes upon the departmental authorities. . . . ” Even if the Newsprint Policy is administrative in character, it is capable of founding rights and liabilities. Generally speaking, it is true that an administrative order can confer no justiciable rights or impose duties enforceable in a Court. But it can confer rights and impose duties. The limit within which such rights and duties will be recognised and enforced has been stated by an eminent author:

“Let us take one of Mr. Harrison’s instances, a regulation from the British War Office that no recruit shall be enlisted who is not five feet six inches high. Suppose a recruiting officer musters in a man who is five feet five inches only in height, and pays him the King’s shilling ; afterwards the officer is sued by the Government for being short in his accounts; among other items he claims to be allowed the shilling paid to the undersized recruit. The Court has to consider and apply this regulation and, whatever its effect may be, that effect will be given to it by the court exactly as effect will be given to a statute providing that murderers shall be hanged, or that last wills must have two witnesses.

It was contended on behalf of the petitioners that the direction contained in the Newsprint Policy as regards the utilization of. the newsprint after the allotment of the quota is ultra vires the powers of the licensing authority issuing the same. It is said that after newsprint has been imported, there was no Ion any power left in the Central Government or in the Chief Controller of Imports and Exports to direct the manner in which it should be utilized.

Cl.5(1) of the Imports (Control) Order, 1955 provides;

“5. Conditions of Licenses : (1) The licensing authority issuing a licence under this Order may issue the same subject to one or more of the conditions stated below :- (i) that the goods covered by the licence shall not be disposed of, except in the manner prescribed by the licensing authority, or otherwise dealt with, without the written permission of the licensing authority or any person duly authorised by it;” (1) John Chimpman Gray, the Nature and Sources of the Law, Second Edition 825 In Abdul Aziz Aminuddin v. State of Maharashtra(1), this Court said that the power conferred under s. 3(1) of the Act (Imports and Exports (Control) Act, 1947) is not restricted merely to prohibiting or restricting imports at the point of entry but extends also to controlling the subsequent disposal of the goods imported and that the person licensed to import goods would be amenable to the orders of the licensing authority with respect to the way in which those goods are to be utilized. This dictum was approved by this Court in State of West Bengal v. Motilal Kanoria(2). See also the observation of Sarkar, J. in East India Commercial Co. Ltd., Calcutta and Another v. The Collector of Customs Calcutta(3), at p. 348. Even if it be assumed that Government or the Chief Controller of Imports and Exports has no power under cl. 5(1)(i) of the Imports (Control) Order, 1955, to issue directions as regards the mode of utilization of newsprint after its import, it is clear that the Government has power by virtue of the provisions of s.3 of the Essential Commodities Act, 1955, to pass an Order as regards the utilization of newsprint, as newsprint is an ,essential commodity’ under that Act (see s. 2(vii) of the Act).

The only other point which remains for consideration is whether clauses 3(3) and 3(A) of the Newsprint Control Order violate Art. 14 of the Constitution. None of the provisions of the Essential Commodities Act, 1955, is challenged as ultra vires the Constitution. The Newsprint Control Order was passed under s. 3 of the Essential Commodities Act, 1955. Sections 3 and 4 of this Act are in pari materia with sections 3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946. These provisions were challenged, on the ground of excessive delegation of legislative power, in the case of Harishankar Bagla and Another v. The State of Madhya Pradesh (4) . But this Court said that the preamble and the body of the sections sufficiently formulate the legislative policy. that the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the frame work- of that policy and that s. 3 was valid. And as regards s. 4 the Court said that the section enumerates the classes of persons to whom the power could be delegated or sub-delegated by the Central Government and it is not correct to say that the instrumentalities have not been selected by the Legislature itself. Section 4 of the Essential Commodities Act, 1955, provides that an order made under s. 3 may confer powers and impose duties upon the Central Government or the State Government or officers and authorities of the Central Government or State Government, and may contain directions to any State Government or to officers and authorities thereof as to the exercise of any such powers or the discharge of (1) [1963] INSC 21; [1964] 1 S.C.R. 830, 837-8.

(2) [1966] INSC 76; [1966] 3 S.C.R. 933.

(3) [1962] INSC 199; [1963] 3 S.C.R. 338, 371-72.

(4) [1955] 1 S.C.R. 380, 388-9.

826 any such duties. It was, therefore, open to the Government to confer such powers upon the “controller” as defined in the Newsprint Control Order, 1962:

“2(b) Controller means the Chief Controller of Imports and Exports and includes any officer appointed by the Central Government to exercise the powers of the Controller under this Order.” Sub-clause (3A) was introduced in cl. 3 of the Newsprint Control Order, 1962, for a particular purpose. There is only a limited quantity of white printing paper. In view of the shortage of white printing paper in the country, it was considered necessary by the Government to restrict its use by consumers of newsprint who were getting quota of imported newsprint. In fact, for newspapers and periodicals, newsprint is the more acceptable raw material than white printing paper. It was found that some of the more affluent papers had started drawing heavily on the limited quantity of white printing paper available, thereby causing great hardship to the other consumers of this commodity like Central and State Governments, text-book publishers and students. It was with a view to meet this situation that restriction on its use by a consumer of newsprint other than the person specified therein was imposed.

The argument that unregulated discretion has been conferred under sub-clauses 3 and 3A of cl. 3 is not correct. The preamble and the provisions of the Essential Commodities Act furnish sufficient guidance for the exercise of the powers conferred. It is impossible, in the nature of things, to specify with greater particularity the guidelines for the exercise of the powers conferred under these clauses. If the conferment of the power upon the Government under s. 3 is valid and is not open to attack under Art. 14, 1 think the power conferred upon the sub-delegate is also valid.

It is not necessary for me to express any opinion as regards the maintainability of the writ petitions on the ground that the consumers of the newsprint in question are not citizens and I do not express any opinion.

I would dismiss the petitions without any order as to costs.

BEG, J. The Writ Petitions before us challenge what is des- cribed as “News Print Policy” notified for the period from April, 1971 to March, 1972. As the impugned Notification does not mention the provision of law under which it was issued, we have to scrutinise its contents to discover the authority for its promulgation. It is headed “Public Notice” on “Import Trade Control”. The subject is given as “Import Policy for News Print”. The “Policy” is contained in a schedule annexed to the Notice. The first of the 827 six columns of the Schedule gives the serial number of the item involved which is 44/V of the I T C Schedule. Volume I of the .”Red Book” on Import Trade Control Policy, issued by the Ministry of Foreign Trade, mentions, against item 44/V for white printing paper, that import policy for “News Print” Will be announced later. The impugned items, found in the remarks’ column, contain that announcement applicable from April, 1971 to March, 1972. A subsequent similar notification dated 11-41972 shows that identically worded terms were to be applicable to the period from April, 1972 to March, 1973, and these are also assailed by the petitioners.

Apparently, the impugned remarks constitute conditions for the import of quotas of news print assigned to the licensees. They are meant to be obeyed if the licensees want their quotas. The implication of such an imposition clearly is that the licences could be revoked if terms of their grant are not complied with apart from other possible consequences in the future. It is alleged that these terms interfere with the fundamental rights of petitioners to freely express their opinions through their newspapers and to carry on the manufacture and sale of newspapers to the public. If, however, these terms and conditions do not fall under any provision of law but interfere with the exercise of petitioners’ fundamental rights, the question of testing their reasonableness will not arise,.

What is termed “policy” can become justiciable when it exhi- bits itself in the shape of even purported “law”.

According to Article 13(3) (a) of the Constitution, “law” ‘Includes “any Ordinance, Order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law”. So long as policy remains in the realm of even rules framed for the guidance of executive and administrative authorities it may bind those authorities as declarations of what they are expected to do under it. But, it cannot bind citizens unless the impugned policy is shown to have acquired the force of “law”. Mr. Nambiar, appearing for the Hindu Newspaper, has, therefore, assailed the impugned items of the news print control policy on the ground, inter-alia, that the fundamental rights of the petitioners represented by him cannot be curtailed by anything less than “law”.

For the reasons given by both my learned brethren Ray and Mathew the impugned items of what is called the “Newsprint Policy” seem to me to be intended to have the force of law which, if not observed by the petitioners, will impede and jeopardise the exercise by them of their fundamental rights.

The intention behind the publication of the Newsprint Policy was obviously to bind the petitioners by the conditions laid down in the remarks’ column. It had, therefore, to be brought under some provision of law which could authorise the laying down of such binding conditions upon 828 those who run the newspapers and want to either express their opinions freely or to carry on their businesses without let or hindrance. I, seems to me that this Court should not hesitate to remove such restrictions if they purport to have the force of law. even if they are not “law”, provided they have the effect of restricting the exercise of fundamental rights. This effect the res- trictions certainly have had and will have unless they are removed by us. According to the petitioners, their observance has entailed such heavy losses to them that they may have to stop doing their business if the restrictions continue.

It is difficult to over-emphasize the importance of Freedom of the Press as one of the pillars of a Government “of the people,. by the people, and for the people”. I may quote what Lord Bryce said in The American Commonwealth (New and Revised Edition) (pp. 274, 275, 367):

“The more completely popular sovereignty prevails in a country, so much the more important is it that the organs of opinion should be adequate to its expression, prompt, full, and unmistakable in their utterances**** The press, and particularly the newspaper press, stands by common consent first among the organs of opinion* * * The conscience and common sense of the nation as a whole keep down the evils which have crept into the working of the Constitution, and may in time extinguish them. That which, carrying a once famous phrase, we may call the genius of universal publicity, has some disagreeable results, but the wholesome ones are greater and more numerous. Selfishness, injustice, cruelty, tricks and jobs of all sorts, shun the light; to expose them is to defeat them.

No serious evils, no rankling sort in the body politic, can remain long concealed, and, when disclosed, it is half destroyed. So long as the opinion of a nation is sound, the main lines of its policy cannot go far wrong”.

John Stuart Mill, in his essay on “Liberty”, pointed out the need for allowing even erroneous opinions to be expressed on the ground that the correct ones become more firmly established by what may be called the ‘dialectical’ process of a struggle with wrong ones which exposes errors. Milton, in his “Areopagitica” 1 644) said:

“Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her 829 strength. Let her and Falsehood grapple;

whoever knew Truth put to the worse, in a free and open encounter ? ….. I Who knows not that Truth is strong, next to the Almighty;

she needs no policies, no stratagems, no licensings to make her victorious; those are the shifts and defenses that error makes against her power……..

Political philosophers and historians have taught us that intellectual advances made by our civilisation would have been impossible without freedom of speech and expression.

At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat’s faith when he told an adversary in argument : “I do not agree with a word you say, but I will defend to the death your right to say it”. Champions of human freedom of thought and expression throughout the ages, have realised that intellectual paralysis creeps over a Society which denies, in however subtle a form, due freedom of thought and expression to its members.

Although, our Constitution does not contain a separate guar- antee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article. 19(1) (a) of the Constitution, yet. it is well recognised that the Press provides the principal vehicle of expression of their views to citizens. It has been said : “Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working, of its institutions.

Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so Subtle. But, like other liberties, this also must be limited.” The exent of permissible limitations on freedom of expression is also indicated by our Constitution which contains the fundamental law of the land. To that law all Governmental policies, rules and regulations, orders and directions, must conform so that there is “a Government of laws and not of men” , or, in other words, a Government whose policies are based on democratic principles and not on human caprice or arbitrariness. Article 19(2) of the Constitution. requires that Governmental action which affects freedom of speech and expression of Indian citizens should be founded on some “law” and also that such “law” should restrict freedom of expression and opinion reasonably only “in the interests of the sovereignty and integrity of India, the security of the St-ate, friendly relations with foreign states, Public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.” Although, the ambit of restrictions which can be imposed by “law” on freedom to carry on any occupation, trade, or business, guaranteed by Article 19 (1) (g) of the Constitution, is wider than that of res- 830 trictions on freedom of speech and expression, yet, these restrictions have also to be limited to those which are reasonably necessary “in the interest of the general public” as contemplated by Article 19(6) of the Constitution.

Permissible restrictions on any fundamental right, even where they are imposed by duly enacted law- must not be excessive, or, in other words, they must not go beyond what is necessary to achieve the objects of the law under which they are sought to be imposed. The power to impose restrictions on fundamental rights is essentially a power to “regulate” the exercise of these rights. In fact, “regulation” and not extinction of that which is to be regulated is generally speaking the extent to which per- missible restrictions may go in order to satisfy the test of reasonableness. The term “regulate” has come up for interpretation on several occasions before American Courts which have held that the word “regulate” means “to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws”.

(See : Words and Phrases, VoL 36, p. 687 by West Publishing Co.). I do not see any reason to give a different meaning to the term “regulation” when we use it.

In the cases before us, I confess that it is very difficult to make out the real object of the restrictions imposed by the impugned items of Newsprint Policy. The Additional Solicitor General did not contend that these items of newsprint import policy were not meant to have the force of rules for conducting business or regulating actions binding upon the petitioners or of “law”. He sought to justify them, in so far as they affect freedom of speech and expression, as either necessary incidents of import of essential commodities and the allocation of foreign exchange, which is limited, between them, or, as a method of ensuring a more widely spread freedom of expression by striking at monopolisation of opinion by large newspaper concerns. I am unable to see how these restrictions, after quotas have, been allotted on the basis of past performance and respective needs of each newspaper concern, could fall within the objects of any import policy found in any statutory provision or order. And, so far as any attempt to control .any monopolistic tendencies in the newspaper world is concerned, no material was placed before us to enable us to see how the impugned conditions of import licences, sought to be imposed by the entries in the remarks columns of the notified Import Trade Control Policy, are related to any law directed against monopolisation. The impugned items in the declaration of newsprint policy, which are meant to bind those who had obtained import_licences, were not imposed under any law made to check monopolies. It was also not possible for me to see the relevance of these restrictions 831 to any of the objects of either the Essential Commodities Act, 1955 or orders passed thereunder or to the Import and Export (Control) Act of 1947 or to orders made thereunder.

The objects and ambits of the two enactments mentioned above, which were relied upon. on behalf of the Union, are fairly clear and well defined.

No doubt clause 3 of the Newsprint Control Order, 1962, issued in exercise of powers conferred by Section 3 of the Essential Commodities Act 1955 lays down certain restrictions “on acquisition, sale and consumption of newsprint”. The clause runs as follows :- “(1) No person other than an importer shall acquire newsprint except under and in accordance with the terms and conditions of an authorisation issued by the Controller under this Order. , (2) No dealer in newsprint shall sell to any person newsprint of any description or in any quantity unless the sale to that person of newsprint of that description or in the quantity is authorised by the Controller.

(3) No consumer of newsprint, in any licensing period, consume or use newsprint in excess of the quantity authorised by the Controller from time to time.

(3A) No consumer of newsprint, other than a publisher of text books or books of general interest, shall use any kind of paper other than newsprint except with the permission, in writing, of the Controller.

(4) An authorisation under this clause shall be in writing in the form set out in Schedule II.

(5) In issuing an authorisation under this clause, the Controller shall have regard to the principles laid down in the Import Control Policy with respect of newsprint announced by the Central Government from time to time”.

Section 3(1) of the Essential Commodities Act, 1955 lays down the condition for and objects of issue of orders under it in the following terms :- “3(1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices, or for securing any essential commodity for the defence of India or the efficient conduct of military 832 operations it may, by order, provide for regulating or prohibiting the production, supply and distribution thereof and trade and commerce therein”.

Section 3(2) lays down that “without prejudice to the generality .of the powers conferred by sub s. (1), an order made thereunder may provide” inter alia : (a) “for regulating by licences, permits or otherwise the, production or manufacture of any essential commodity;” and (b) “for regulating by licences, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity”.

Orders issued under Section 3 of the Essential Commodities Act 1955 must bear a reasonable relationship to the purposes for which such orders can be made. Clause 3 (5) of the Newsprint Control Order, 1962, presupposes the existence of some principles ,of “Import Control Policy” without either stating them or indicating how they are to be related to the objects of Section 3. Obviously, they cannot go beyond the Act. If the impugned terms and conditions could be covered by the vague clause 3(5) ,of the News Print Control Order, 1962, 1 venture to think that this provision of the News Print Control Order 1962 may itself have to be declared invalid by us. I may also mention that there seems to be a serious flaw here inasmuch as no machinery for fair and just administrative decisions, so as to correlate conditions im- posed upon competing claimants for quotas of a limited amount of news print to their needs and to the requirements of a law which is meant to ensure an “equitable distribution”, is provided here. However, as it is not necessary, for the purposes of giving relief to the petitioners, to pronounce on the validity of clause 3 (5) of the Newsprint Control Order, 1962, I will, in conformity with the opinion expressed by my learned brother Ray on this aspect, refrain from deciding the question of the validity of its provisions in the cases before us.

Section 3(1) of the Imports & Exports (Control) Act, 1947, restricts the power of the Central Government, “by order published in the official Gazette”, to making “provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases, and subject to such exceptions if any as may be made by or under the order :- (a) the import, export, carriage coast-wise or shipment in ships stores of goods of any specified description;

(b) the bringing into any port or place in India of goods of any specified description intended to be taken out of India without being removed from the ship or conveyance in which they are being carried”.

833 Clause 3 of the Imports (Control) Order, 1955, made in exercise of powers conferred by Sections 3 and 4A of the Imports & Exports (Control) Act, 1947, says :

.lm15 “3. Restriction of Import of certain goods:– (1) Save as otherwise provided in this order, no person shall import any goods of the description specified in Schedule 1, except under, and in accordance, with a licence or a customs clearance permit granted by the Central Government or by any officer specified in Schedule 11”.

It seems to me that the ambit of the conditions in a licence cannot, under the provisions of the Imports and Exports Control Act, after newsprint has been imported under a licence, extend to laying down how it is to be utilised by a newspaper concern for its own genuine needs and businesses because this would amount to control of supply of news by means of newsprint instead of only regulating its import.

The enactments and orders mentioned above seem to me to authorise Only the grant of licences for particular quotas to those who run newspapers on the strength of their needs, assessed on the basis of their past performances and future requirements and other relevant data, but not to warrant an imposition of further conditions to be observed by them while they are genuinely using the newsprint themselves in the course of carrying on a legitimate and permissible occupation and business. The impugned restrictive conditions thus appear to me to go beyond the scope of the Essential Commodities Act, 1955, as well as of the Imports and Exports (Control) Act, 1947.

References were also made by the learned Additional Solicitor General to the provisions of the Press and Regulation Books Act, 1867, Registration of Newspapers (Central Rules), 1956, and Press Council Act, 1965, as parts of a possibly desperate attempt to justify the impugned items of newsprint control policy and to show that they are covered by some provision of law. I am unable to- find the legal authority anywhere here also for these items of Newsprint Control Policy.

I think, for the reasons given above, that the argument put forward oil behalf of the petitioners that, after the allocation of quotas of newsprint to each set of petitioners, on legally relevant material, the further restrictions sought to be imposed, by means of the notified newsprint control policy, on the actual mode of user of newsprint for publication of information or views by the licensees, similar to those which were held by this Court, in Sakal 834 invalid, are not covered by any law in existence, has to be accepted. Hence, it is not even necessary for us to consider whether they are reasonable restrictions warranted by either Article 19(2) or Article 19(6) of the Constitution. They must first have the authority of some law to support them before the question of considering whether they could be reasonable restrictions on fundamental rights of the petitioners could arise.

1, therefore, concur with the conclusions reached and the orders proposed by my learned brother Ray.

G.C.

(1) [1961] INSC 281; [1962] 3 S.C.R. 842.

499 Sup. CI/73–25,00–15-4-74–GIPF.

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IN THE SUPREME COURT OF INDIA

AYODHYA SINGH …PETITIONER
Vs.
STATE OF RAJASTHAN …RESPONDENT

DATE OF JUDGMENT: 16/08/1972

BENCH: KHANNA, HANS RAJ SHELAT, J.M. DUA, I.D.

CITATION:
1972 AIR 2501 1973 SCR (1) 880
1972 SCC (3) 885

ACT:

I.P.C.-S. 457 and 280 read with S. 75.-Appellant found inpossession of stolen goods within 17 days of the theft- Appellant if guilty-S. 114 of the Evidence Act-Its scope.

HELD : (1) The recovered articles were mixed with other similar articles and all necessary precautions were taken by the Magistrate The article were correctly identified by the complainant and his father. Nothing cogent has been shown as to why the statement of the Magistrate in this respect be not accepted.

(2) Although the High Court observed that the judgments of the trial Court, the Additional Sessions Judge were not satisfactory, but this circumstance is not very material because the High Court considered the evidence in details and came to the conclusion that the case against the accused had been proved. Therefore, it cannot be said that the accused persons had been prejudiced in any way.

(3) So far as the question of misjoinder of charges is concerned, the submission is without any force, because the circumstances of the case show that the accused jointly committed the offences with which they were charged and that those offences were committed in the course of the same transaction. The two accused could consequently be charged and tried together Such a course is permitted by s. 239 of the Code of Criminal Procedure.

881 (4) The house-breaking and theft took place on the night between February 8 and February 9, 1964. The various stolen articles were recovered from the appellant’$ house on February 21,, 1963 an there, after from his person on February 25, 1964. The appellant was in police custody after February 25 1964 and more stolen articles were recovered on March 3, 1964 from the graveyard in pursuance of his disclosure statement. The articles which were recovered on March 3, 1964 can therefore, be held to be in possession of the appellant on February 25, 1964. It would thus follow that within 17 days of the theft, the appellant was found in possession of the stolen articles. According to the illustration (a) of s. 114 of the Indian Evidence Act, a man who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In the present case, the appellant has not been able to account for his possession of the stolen articles. The explanation furnished by him is not all worthy of credence. The courts below were right in convicting the accused. The fact that the appellant was found soon after the theft in possession of a very large number of stolen articles as well as the other circumstances, show that the appellant was himself the thief and not the receiver of stolen goods. [885A]

CRIMINAL APPELLATE JURISDICTION : Cr. A. No. 212 of 1968. Appeals by special leave from the judgment and order dated January 19, 1968 of the Rajasthan High Court in Crl. Revision No. 383 of 1967. S. P. Singh and Shiv Pujan Singh for the appellant. Debabroto Mookerjee, P. C. Kapur and K. B. Mehta for the respondent.

The Judgment of the Court was delivered by Khanna, J. Ayodhya Singh appellant and Hira Singh were convicted by Additional Munsiff Magistrate Jaipur for offences under section 457 and 380 read with section 75 Indian Penal Code. Ayodhya Singh was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of rupees two thousand for the offence under section 457 read with section 75 Indian Penal Code. In default of payment of fine, Ayodhya Singh was sentenced to undergo rigorous imprisonment for a further period of six months.

Similar sentence was awarded to Ayodhya Singh for the offence under section 380 read with section 75 Indian Penal Code. The two sentences were ordered to run consecutively.

Hira Singh was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of rupees one thousand, or in default, to undergo rigorous imprisonment for a further period of six months for the offence under section 457 read with section 75 Indian Penal Code. Similar sentence was awarded to Hira Singh for the offence under section 380 read with section 75 Indian Penal Code. The two sentences of Hira Singh were also ordered to run consecutively. Appeals filed by Ayodhya Singh and Hira Singh were dismissed by Additional Sessions Judge Jaipur.

Revision petitions filed by Ayodhya Singh and 7–L173Sup.C.I./73 882 Hira Singh in Rajasthan High Court met with no better fate. Ayodhya Singh thereafter filed this appeal by special leave through jail.

The prosecution case is that Kistoor Chand (PW 73) deals in gold and silver. He was running a shop in Johri bazar Jaipur, but sometime before the occurrence he had to vacate the shop and remove the gold and silver ornaments worth over a lakh of rupees to his house situated in Manni Ramji-ka- Rasta in Jaipur City. The house has four storeyes and the ornaments were put in a room on the third storey of the house. Cash amount was also kept by Kistoor Chand in that room. When Kistoor Chand got up on the morning of February 9, 1964 he found that the big window of the room in which ornaments had been kept was lying open. On opening the room it was found that the boxes containing ornaments were lying empty. A number of articles were seen scattered in the room. Report about the occurrence was lodged at police station Manak Chowk Jaipur City by Mahindra Kumar (PW 74), son of Kistoor Chand at 7-30 a.m. on February 9, 1964. A case was then registered by the police under sections 457 and 380 Indian Penal Code.

Sub Inspector Basarat Vallabh went soon after the registration of the case to Kistoor Chand’s house and found that culprits had effected their entry into the room by breaking open the window. The Sub Inspector saw a number of articles scattered in the room. The containers for keeping gold and silver ornaments were lying empty. A police photographer was sent for. The photographer developed the finger prints left by the culprits on a silver plate lying in an almirah of the room. The photographs of the finger impressions were compared with the specimen finger impressions of Hira Singh accused and it was found that they tallied with each other.

Hira Singh accused was arrested on February 21, 1964. In pursuance of disclosure statement of Hira Singh Rs. 1,790 were recovered from Saraswati Bai, wife of the brother of Hira Singh. A box was also recovered in pursuance of the disclosure statement of Hira Singh and a number of stolen articles were found in that box. Hira Singh also got recovered an instrument of house breaking. As a result of the interrogation of Hira Singh, the police raided the house of Ayodhya Singh appellant at Jairi on February 21, 1964 and recovered from that place 18 stolen articles. Ayodhya Singh was arrested by the police on February 25, 1964 at Etawah and from his personal search 26 items of stolen property were recovered. The recovered property included cash amount of Rs. 6,485/- including 28 currency notes of the denomi- nation of Rs. 100/-. In pursuance of information supplied by 883 Ayodhya Singh, the police recovered on March 3, 1964 a number of stolen gold articles wrapped in an old baniyan which had been buried in a graveyard near milestone No. 5 on the Agra-Etawah-Kanpur road. Identifications of recovered ornaments were held by Shri A. C. Bafna Magistrate (PW 72) on July 17, 1964 and July 20, 1964. The recovered ornaments were then identified by Kistoor Chand and Mahendra Kumar PWs as those which belonged to them and which had been stolen.

At the trial the two accused denied the prosecution allocations against them and stated that they had been falsely involved in this case. According to them, the various articles which had been recovered by the police, belonged to them. Regarding the recovery of some gold bars from him, the appellant stated that he got the bars prepared for the purpose of purchasing bonds. The trial court accepted the prosecution case and convicted and sentenced the accused as, above. The recovered articles were ordered to be restored to Mahendra Kumar complainant. Appeals and revision petitions filed by the accused, as stated earlier, were dismissed.

We have heard Mr. Singh who has argued the case amicus curiae on behalf of the appellant and are of the opinion that there is no merit in the appeal. The fact that some persons had broken into the house of Kistoor Chand on the night between February 8 :and February 9, 1964 and had removed valuable articles consisting of cash, jewellery and silverware is proved by the testimony of Kistoor Chand and Mahindra Kumar. The prosecution has also led evidence to show that a number of stolen articles were recovered in pursuance of the disclosure statement of Hira Singh accused after he was, arrested on February 21, 1964. The inter- rogation of Hira Singh led to the police raid on the house of Ayodhya Singh appellant wherefrom a number of stolen articles were recovered. Ayodhya Singh was arrested on February 25, 1964 and some of the stolen articles were recovered from his ‘person. Ayodhya Singh thereafter made disclosure statement ,,which led to the recovery of more stolen articles from a graveyard ,on March 3, 1964. The appellate court and the High Court accepted the evidence adduced by the prosecution in this respect. The version of the accused that the recovered articles ‘belonged to them was rejected. The courts below in this content relied upon the identification of the recovered articles by Kistoor Chand and Mahindra Kumar. Nothing has been brought to our notice by Mr. Singh as may justify interference with the appraisement of the evidence’ of the trial magistrate, the Additional Sessions Judge and the High Court. One significant circumstance which shows the falsity of the claim made by the appellant that the recovered articles belonged to him is the fact that some of those articles were recovered from a graveyard near milestone No. 5 at Agra- Etawah Kanpur road. The articles were found to’ have been buried there 884 and were recovered in pursuance of the disclosure statement of the appellant. If the aforesaid recovered articles consisting of gold bars belonged to the appellant, it is difficult to believe that he would have buried them in a lonely spot in a graveyard. The fact that, the appellant buried them in a graveyard shows his anxiety to conceal those articles so that no one may know that he was in possession of those articles.

Mr. Singh has assailed the propriety of the identification of the recovered articles. In this respect we find that the evidence of Shri A. C. Bafna Magistrate (PW 72) shows that the recovered articles were mixed with other similar articles and all necessary precautions were taken. Kistoor Chand and Mahindra Kumar correctly identified the recovered articles. Nothing cogent has been shown to us as to why the statement of Shri Bafna in this respect be not accepted.

Mr. Singh has referred to the observations of the High Court that the judgments of the trial magistrate and the Additional Sessions Judge were not very satisfactory. This circumstance, in our opinion, is not very material because the High Court considered the evidence which had been adduced in the case at some length and came to the conclusion that the case against the accused had been proved. In view of the fact that the evidence on record has been discussed in detail by the High Court, it cannot be said that the appellant has been prejudiced because of the fact that the judgments of the trial magistrate and the appellate court were not as elaborate as they should have been.

A faint attempt was made by Mr. Singh to show that there had been misjoinder of charges. This submission is plainly without any force because the circumstances of the case show that the accused jointly committed the offences with which they were charged and that those offences were committed in the course of the same transaction. The two accused could consequently be. charged and tried together as such a course is permitted by section 239 of the Code of Criminal Procedure.

Lastly, it has been argued that the conviction of the appellant should have been under section 411 Indian Penal Code and not under sections 457 and 380 Indian Penal Code.

This contention is equally untenable. The house breaking and theft in the house of Kistoor Chand took place on the night between February 8 and February 9, 1964. The various stolen articles were recovered from the appellant’s house on February 21, 1964 and thereafter from his person on February 25, 1964. The appellant was in police custody after February 25, 1964 and more stolen articles were recovered on March 3, 1964 from the graveyard in pursuance of his disclosure statement. The articles which were recovered on March 3, 1964 can consequently be held to be in the possession of the appellant on February 25, 1694. It would 885 thus follow that within 17 days of the theft the appellant was found in possession of the stolen articles. According to illustration (a) of section 114 of the Indian Evidence Act, a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It would, in our opinion, depend upon the facts and circumstances of each case whether the court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen. We may state at this stage that the appellant has not been able to account for his possession of the stolen articles and the explanation furnished by him is not all worthy of credence.

Looking to the facts and circumstances of the case, we are of the view that the courts below were justified in drawing the presumption that the appellant was guilty of the offence under section 457 and 380 Indian Penal Code. The fact that the _culprits entered the room on the third floor by opening the window and thereafter broke open a large number of boxes and almirahs and removed huge quantity of gold and silverware shows that it was not the work of a single individual. The fact that the appellant was found soon after the theft in possession of a very large number of stolen articles shows that he was himself the thief and not the receiver of stolen goods.The present is not a case wherein one or two or a very few of the stolen articles were found in the possession of the appellant soon after the theft. On the contrary, the bulk of stolen articles were recovered from him. The number and the nature of the stolen articles recovered from the appellant soon after the theft coupled with the other circumstances of the case, in our opinion, warrant the presumption that the appellant himself committed the theft after entering the room on the third storey of Kistoor Chand’s house through the window.

In the result, the appeal, fails and is dismissed.

S.C. Appeal dismissed.

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DATE : 22 September 1972

BENCH : RAY, A.N. RAY, A.N. DUA, I.D.

CITATION: 1973 AIR 157 1973 SCR (2) 417 1973 SCC (1) 471

CITATOR INFO : R 1986 SC 3 (30,147, 219) F 1987 SC1748 (20)

ACT: Indian Penal Code-ss. 161, 385, 420 read with s. 511- Appellant charged for attempted bribery along with other charges-Conversation between appellant and witness tape recorded-Whether admissible in evidence Indian Telegraph Act-S. 25-Scope.

HELD : (i) There was no violation of the Indian Telegraph Act. The substance of the offence under S. 25 of the Indian Telegraph Act is damaging, removing, tampering, touching machinery, battery line, or post for interception or acquainting oneself with the contents of any massage. Where a person talking on the telephone allows another person to record it or hear it, it cannot be said that the other persons who is allowed to do so is damaging, removing, tampering, touching machinery, battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape-recorder to the telephone. Therefore, the High Court’s observation that the telephone call put by Dr. M. to the appellant was tapped by the Police Officer and that there was violation of s. 25 of the Indian Telegraph Act, is erroneous.

(ii) Tape recorded conversation is admissible, provided first the conversation is relevant to the matters in issue, secondly, there is identification of the voice and thirdly, the accuracy of the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorder.

The tape-recorded conversation is, therefore, a relevant fact under section 8 of the Evidence Act and is admissible under s. 7 of the Evidence Act.

[424 F] 418 N. Srirama Raddy v. Shri V. V. Giri [1970] INSC 109; [1971] 1 S.C.R. 399;

Yusaf Ali lsmail Nagri v. The State of Maharashtra, [1967] INSC 79; [1967] 3 S.C.R. 720 and S. Pratap Singh v. State of Punjab [1963] INSC 186; [1964] 4 S.C.R. 733, referred to.

(iii) The tape-recorded conversation is not within the vice of s. 162 of Cr. P. C. It was said that the tape-recording was in the course of investigation. S. 161 and 162 of the Cr.P.C. indicate that there is investigation when the police officer orally examine a person. The telephonic con- versation was between Dr. M and the appellant, Each spoke to the other. Neither made a statement to the police officer.

Therefore, there was no mischief of s. 1 62. [427 H] (iv) It is also not correct that the appellant did not attempt an offence. The conversation was said to show bargain. The evidence is that the patient died on the 13th May 1964. Dr. M saw the appellant on 3rd October 1964. The appellant demanded Rs. 20,000/- in order that Dr. A could avoid inconvenience and publicity in papers, in case the inquest was field. Further, it was also proved that the appellant bargained land lowered his demand to Rs. 10,000/- and then again raised to Rs. 15,000/-. These facts together with other facts found by the courts to be correct anti these facts prove that the offence was committed.

(v) The appellant’s contention that the sentence of imprisonment should be set aside in view of his payment of a fine of Rs. 10,000/- it is true that in some cases, the Courts have allowed the sentence undergone to be the sentence. That depends upon the facts as to what the term of the sentence is and what the period of sentence undergone is. In the present case, it cannot be said that the appellant had undergone any period of sentence. Further the gravity of the offence and the position held by the appellant at the relevant time. do not merit any lenient view about the sentence.

JUDGMENT

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal 229 of 1969.

Appeal by certificate from the judgment and order dated October 9, 1969 of the Bombay High Court in Cr. A. No. 727 of 1967.

B. M. Mistry and Vineet Kumar, for the M. C. Bhandare and B. D. Sharma and S. P. Nayar, for the respondent.

The Judgment of the Court was delivered by RAY, J.-This is an appeal by certificate, from the judgment dated 8 and 9 October, 1969 of the High Court at Bombay convicting the appellant under sections 161 and 385 of he Indian Penal Code. The High Court confirmed the substantive sentence to simple imprisonment for six months under section 161 of the Indian Penal Code and simple imprisonment for three months under section 385 of the Indian Penal Code. In addition, the High Court imposed on the appellant a fine of Rs. 10,000 and in default of payments of fine, further simple imprisonment for six months. 419

The appellant was at the crucial time the Coroner of Bombay. The prosecution case was as follows. Jagdish prasad Ramnarayan Khandelwal was admitted to the nursing home of a Gynecologist Dr. Adatia on 3 May, 1964. Dr. Adatia diagnosed the case as acute appendicitis. Dr. Adatia kept the patient under observation. After 24 hours the condition of the patient became serious. Dr. Shantilal J. Mehta was called. His diagnosis was acute appendicitis with “generalised peritonitis” and he advised immediate operation. Dr. Adatia performed the operation. The appendix, according to Dr. Adatia had become gangrenous. The patient developed paralysis of the ilium. He was removed ?to Bombay Hospital on 10 May, 1964 to be under the treatment of Dr. Motwani. The patient died on 13 May, 1964. The Hospital issued a Death Intimation Card as “paralytic ileus and peritonitis following an operation, for acute appendicitis”.

The appellant allowed the disposal of the dead body without ordering post-mortem. There was however a request for an inquest from the Police Station. The cause for the inquest was that his was a case of post operation death in a hospital. The Coroner’s Court registered the inquest on 13 May, 1964. The dates for inquest were in the months of June, July, September and October, 1964. The appellant was on leave for some time in the months of June and July, 1964. This is said to delay the inquest.

It was the practice of the Coroner’s Court to send letters to professional people concerned in inquest to get the explanation of the Doctor who treated or operated upon the patient. The appellant on 3 October, 1964 made an order that Mr. Adatia be called. It is alleged that the appellant had told Dr. Adatia a ,few days earlier that though he might have operated satisfactorily the cause of death given by the hospital would give rise to a presumption of negligence on his part. Dr. Adatia was asked by the appellant to meet Dr. Motwani, so that the latter could get in touch with the appellant to resolve the technical difficulties. Dr. Motwani met the appellant on 3 October, 1964. The appellant told Dr. Motwani that Dr. Adatia was at fault but he might be cleared of the charge in the inquest. The appellant asked for a sum of Rs. 20,000. Dr. Motwani said that he would consult Dr. Adatia. Dr. Motwani conveyed the proposal to Dr. Adatia. The latter refused to pay any illegal gratification. Dr. Motwani intimated the same to the appellant. The appellant then reduced the demand to Rs. 10,000. Dr. Adatia also refused to pay the same On 4 October the appellant got in touch with Dr. Jadhav. Superintendent of the Bombay Hospital to find out if the cause of 420 death given in the Hospital Card could be substantiated. Dr. Motwani told Dr. Jadhav on the same day that incorrect cause of death was shown and great injustice was done to Dr. Adatia. Dr. Jadhav said that he Would send an amended deposition to the Coroner, the appellant.

On 5 October, 1964 Dr. Motwani and Dr Adatia decided to lodge a complaint with the Anti Corruption Bureau. Dr. Adatia’s Nursing Home got messages on the telephone to get in touch with the appellant. Dr. Adatia complained to Dr. Motwani of the harassment on the telephone. Dr. Motwani rang up the appellant. The appellant asked Dr. Motwani to intimate by 10 a.m. on 7 October whether Dr. Adatia was willing to pay Rs. 10,000. Dr. Motwani rang up Mugwe, Director of the Anti Corruption Branch and complained that a higher Government official was demanding a heavy bribe from a Doctor. Must we then arranged for his staff to be present near Dr. Motwani’s residence on the morning of 7 October with the tape recording equipment to record on the tape the telephonic conversation.

On 7 October 1964 Mugwe and the Assistant Commissioner of Police Sawant went to Dr. Motwani’s residence. They met Dr. Motwani and Dr. Adatia. When they commenced recording the First Information Report of Dr. Motwani, Dr. Adatia left for his Nursing Home. Mugwe then arranged for the tape recording equipment to be attached to the telephone of Dr. Motwani. Dr. Motwani was asked by Mugwe to ring up the appellant in the presence of Mugwe and other Police Officers about the appellant’s demand for the money. Dr. Motwani ran,, up the appellant and spoke with him. Dr. Motwani reported the gist of the talk to Mugwe. Mugwe then asked Dr. Motwani to ring up Dr. Adatia to speak on certain special points. After the talk with Di. Adatia Dr. Motwani was asked by Mugwe to ring up the appellant and ask- for an appointment to discuss the matter further. Dr. Motwani rang up the appellant and an appointment was made to meet the appellant at 12 noon the same day. The conversation between Dr. Motwani and the appellant and the conversation between Dr. Motwani and Dr. Adatia are all recorded on the tape, The two Doctors Motwani and Adatia met the appellant in the Coroner’s Chamber at 12 noon. The appellant raised the demand to Rs. 15,000 and said that Rs. 5,000 was to he paid to Coroner’s Surgeon for giving an opinion in favour of Dr. Adatia. The appellant said that if the amount was not paid the police Surgeon’s opinion would be incorporated in the case. The two Doctors went out of the Chamber for a while. Dr. Adatia then told the appellant that lie would pay the appellant Rs. 15,000 on 9 October, 1964. 421

Dr. Adatia paid Rs. 15,000 to Dr. Motwani. Dr. Motwani took the amount to his house. Dr. Motwani informed the appellant on the. telephone that he had received the money from Dr. Adatia. The appellant asked Dr. Motwani to keep it. The appellant also told Dr. Motwani to bring the money to the appellant’s house on 10 October, 1964. On 10 October the Assistant Commissioner Sawant came to Dr. Motwani’s residence and asked him to go to the appellant’s residence to fix up an appointment for payment of money. Dr. Motwani went to the appellant’s house on 10 October, 1964 at 10 a.m. The appellant was not in the house. The appellant’s wife was there. Dr. Motwani told her that he had come to pay the money. The appellant’s wife said that he could pay her. Dr. Motwani said that he had no instructions to pay. As Dr. Motwani was leaving the building Sawant, the Assistant Commissioner met him. Sawant asked Dr. Motwani to come to Dr. Adatia to ring up the appellant from there.

The Police Officers and Dr. Motwani met at the residence of Dr. Adatia at about 4 p.m. The raiding party connected the tape recorder to the telephone mechanism of Dr. Motwani. Dr.. Motwani dialled the, appellant’s residence and spoke with the appellant in, the presence of the Police Officers. The conversation was also recorded on the tape. It was arranged at the talk that Dr. Motwani would pay the amount to the appellant’s wife on 12 October 1964.. Dr. Motwani was asked to take a letter addressed to the appellant stating that he was returning a loan of Rs. 15,000 which he had taken at the time of buying a flat.

On 11 October, 1964 Dr. Motwani received a telephone call from the appellant asking Dr. Motwani to come to his residence to meet the person to whom the money was to be paid. Dr. Motwani declined to go then. On 12 October 1964 the appellant told Dr. Motwani that the appointment was cancelled because he had not come to the appellant’s residence on 11 October. Dr. Motwani conveyed the news to the Assistant Commissioner.

Mugwe then ordered an open investigation into the case. The appellant was charged under sections 161, 385 and 420 read with section 511 of the Indian Penal Code. Broadly stated, the charges against the appellant were these. He attempted to obtain from Dr. Adatia through Dr. Motwani a sum of Rs. 20,000 which was later reduced to Rs. 10,000 and which was then raised to Rs. 15,000 as gratification for doing or forbearing to do official acts. He put Dr. Adatia in fear of injury in body, mind, reputation and attempted dishonestly to induce Dr. Adatia and Dr. Motwani to pay the sum of money. The appellant was also 422 charged with cheating for having falsely represented to Dr. Adatia and Dr. Motwani that Rs. 5,000 out of the amount of Rs. 10,000 was required to be paid to the Police Surgeon for obtaining his favourable opinion.

The appellant denied that he demanded any amount through Dr. Motwani. He also denied that he threatened Dr. Adatia (if the consequence of an inquest.

Four questions were canvassed in this appeal. The first contention was that the trial Court and the High Court errect in admitting the evidence of the telephonic conversation between Dr. Motwani and the appellant which was recorded on the tape. The evidence was illegally obtained in contravention of section 25 of the Indian Telegraph Act and therefore the evidence was inadmissible. Secondly, the conversation between Dr. Motwani and the appellant which was recorded on the tape took place during investigation inasmuch as Mugwe asked Dr. Motwani to talk and therefore the conversation was not admissible under section 162 of the Code of Criminal Procedure. The third contention was that the appellant did not attempt to obtain gratification. Fourthly. it was said that the sentence of six months imprisonment Should be interfered with because the appellant has already paid Rs. 10,000 as fine. The appellant suffered heart attacks and therefore the sentence should be modified.

The trial Court as well as the High Court found that the evidence of Dr. Motwani and Dr. Adatia needed corroboration. The High Court found that the conversation recorded on the tape corroborated their evidence. The evidence of Dr. Motwani is that on 7 October, 1964 Mugwe accompanied by Sawant and members of the Police staff went to the residence of Dr. Motwani. Mugwe directed Sawant to record Dr. Motwani’s statement. Mugwe had instructed his staff to bring a tape recording machine. After the statement of Dr. Motwani Mugwe connected the tape recording machine to Dr. Motwani’s phone and asked Dr. Motwani to talk to any one he liked in order to test whether the tape recording machine was in order. Motwani was then asked to talk to the appellant. Motwani talked with the appellant. That conversation was recorded on the tape. This tape recorded conversation is challenged by counsel for the appellant to be inadmissible because it infringes Articles 20(3) and 21 of the Constitution and is an offence tinder section 25 of the Indian Telegraph Act.

Section 25 of the Indian Telegraph Act 1885 states that if any person intending (b) to intercept or to acquaint himself with the contents of any message damages, removes, tampers with or touches any battery, machinery. telegraph line, post or other thin 423 whatever, being part of or used in or about any telegraph or in the working thereof he shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both. “Telegraph” is defined in the Indian Telegraph Act in section 3 to mean any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian wave s, galvanic, electric or magnetic means.

Counsel for the appellant submitted that attaching the tape recording instrument to the telephone instrument of Dr. Motwani was an offence under section 25 of the Indian Telegraph Act. It was also said that if a Police Officer intending to acquaint himself with the contents of any message touched machinery or other thing whatever used in or about or telegraph or in the working thereof he was guilty of an offence under the Telegraph Act. Reliance was placed on rule 149 of the Telegraph Rules which states that it shall be lawful for the Telegraph Authority to monitor or intercept a message or messages transmitted through telephone, for the purpose of verification of any violation of these rules or for the maintenance of the equipment. This Rule was referred to for establishing that only the Telegraph Authorities could intercept message under the Act and Rules and a Police Officer could not.

In the present case, the High Court held that the telephone call put by Dr. Motwani to the appellant was tapped by the Police Officers and, therefore, there was violation of section 25 of the Indian Telegraph Act. But the High Court held that the tape recorded conversation was admissible in evidence in spite of the violation of the Telegraph Act.

The Police Officer in the present case fixed the tape recording instrument to the telephone instrument with the authority of Dr. Motwani. The Police Officer could not be said to intercept any message or within the meaning of section 25 of the The reason is that the Police Officer instead the oral conversation between Dr. Motwani recorded the conversation with the device of the The substance of the offence under section graph Act is damaging, removing, tampering, touching battery line or post for interception or acquainting oneself with damage or remove or touch any machinery Indian Telegraph Act. of hearing directly and the appellant tape recorder. 25 of the Indian Tele machinery the contents of any message. Where a person talking on the telephone allows another person to record it or to hear it it cannot be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any. 424 message, There was no element of coercion or compulsion in attaching the tape recorder to the telephone. There was no violation of the Indian Telegraph Act. The High Court is in error ,on that point.

This Court in Shri N. Sri Rama Reddy etc. v. Shri V. V. Giri(1), Ysufalli Esmail Nagree v. The State of Maharashtra(2) ,and S. Pratap Singh v. The State of Punjab(3) accepted conversation or dialogue recorded on a tape recording machine as admissible evidence. In Nagree’s case the conversation was between Nagree and Sheikh. Nagree was accused of offering bribe to Sheikh.

In the Presidential Election case (supra) questions were put to a witness Jagat Narain that he had tried to dissuade the petitioner from filing an election petition. The witness defied those suggestions. The election petitioner had recorded on tape the conversation that had taken place between the witness and the petitioner. Objection was taken to admissibility of tape recorded conversation. The Court admitted the tape recorded conversation. In the Presidential Election(4) case the denial of the witness was being controverted, challenged and confronted with his earlier statement. Under section 146 of the Evidence Act questions might be put to the witness to test the veracity of the witness. Again under section 153 of the Evidence Act a witness might be contradicted when he denied any question tending to impeach his impartiality. This is because the previous statement is furnished by the tape recorded conversation. The tape itself becomes the primary and direct evidence of what has been said and recorded.

Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice’; and. thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act. The conversation between Dr. Motwani and the appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The appellant was given full opportunity to test the genuineness of the tape recorded Conversation. The tape recorded conversation is admissible in evidence.

(1) [1971] 1 S C. R. 399.
(2) [1967] 3 S.C.R. 720
(3) [1964] 4 S.C.R. 733.

425 It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of section 25 of the Indian Telegraph Act. There is no violation of section 25 of the Telegraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if, evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones v. Owen(6). The Judicial Committee in Kur ma, Son of Kanju v. R.(7) dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.

This Court in Magraj Patodia v. R. K. Birla & Ors.(3) dealt with the admissibility in evidence of two files containing numerous documents produced on behalf of the election petitioner. Those files contained correspondence relating to the election of respondent No. 1. The correspondence was between respondent No. 1 the elected candidate and various other persons. The witness who produced the file said that respondent No. 1 handed over the file to him for safe custody. The candidate had apprehended raid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by this Court. This Court said that a document which was procured by improper or even by illegal means could not bar its admissibility provided its relevance and genuineness were proved.

In Nagree’s case (supra) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector. Sheikh gave evidence of the talk. The tape record corroborated his testimony. Just

(1) [1870] 34 J.P. 759.
(2) [1955] A.C. 197.
(3). A.I.R. [1971] S.C. 1295.

426 as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the Surrounding circumstances.

The admissibility of evidence procured in consequence of illegal searches and other unlawful acts was applied in. a recent English decision in R. v. Maqsud Ali(1). In that case two persons suspected of murder went voluntarily with the Police Officers to a room in which, unknown to them, there was a microphone connected with a tape-recorder in another room. They were left alone in the room. They proceeded to have a conversation in which incriminating remarks were made. The conversation was recorded on the tape. The Court of Criminal Appeal held that the trial Judge had correctly admitted the tape-recording of the incriminating conversation in evidence. It was said “that the method of the informer and of the eavesdropper is commonly used in the detection of crime. The only difference here was that a mechanical device was the eavesdropper”. The Courts often say that detection by deception is a form of police procedure to be directed and used sparingly and with circumspection.

When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. The fact that tape recorded conversation can be altered is also borne in mind by the Court while admitting it in evidence.

In the present case the recording of the conversation between Dr. Motwani and the Appellant cannot be said to be illegal because Dr. Motwani allowed the tape recording instrument to be attached to his instrument. In fact, Dr. Motwani permitted the Police Officers to hear the conversation. If the conversation were relayed on a microphone or an amplifier from the telephone and the police officers heard the same they would be able to give direct evidence of what they heard. Here the police officers gave direct evidence of what they saw and what they did and what they (1) [1965] 2 All. E.R. 464. 427 recorded as a result of voluntary permission granted by Dr. Motwani. The tape recorded conversation is contemporaneous relevant evidence and therefore it is admissible. It is not tainted by coercion or unfairness. There is no reason to exclude this evidence.

It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the tape recorded conversation was not procedure established by law and the appellant was incriminated. The appellant’s conversation was voluntary. There was no compulsion. The attaching of the tape recording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant’s conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham(1) it was said “It matters not how you get it if you steal it even, it would be admissible in evidence”.. As long as it is not tainted by an inadmissible confession of guilt evidence even if it is illegally obtained is admissible.

There is no scope for holding that the appellant was made to incriminate himself. At the time of the conversation there was no case against the appellant. He was not compelled to speak or confess. Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded.. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed’ interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods. In the present case there is no unlawful or irregular method in obtaining the tape recording of the conversation.

The second contention on behalf of the appellant was that the entire tape recorded conversation is within the vice of section 162 of the Criminal Procedure Code. In aid of that contention the oral evidence of Mugwe, the Director of Intelligence Bureau was relied on. Mugwe said that it was under his advice and instruction that Dr. Motwani starting talking with the appellant and Dr. Adatia. Therefore, it was said that the tape recording was (1) [1861] 8 Cox.C.C.498. 10-L498SupCI/73 428 in the course of investigation. Sections 161 and 162 of the Criminal Procedure Code indicate that there is investigation when the Police Officer orally examines a person. The telephonic conversation was between Dr. Motwani and the appellant. Each spoke to the other. Neither made a statement to the Police Officer. There is no mischief of section 162.

The third contention was that the appellant did not attempt an offence. The conversation was said to show bargain. The evidence is that the patient died on 13 May, 1964. Dr. Motwani saw the appellant on 3 October, 1964. The appellant demanded Rs. 20,000. The appellant asked for payment of Rs. 20,000 in order that Dr. Adatia would avoid inconvenience and publicity in newspapers in case inquest was held. Dr. Motwani informed Dr. Adatia about the conversation with the appellant. On 4 October, 1964 the appellant rang up Dr. Motwani and said that he was willing to reduce the amount to Rs. 10,000. On 5 October, 1964 Dr. Adatia received calls from the appellant asking him to attend the Coroner’s Court on 6 October, 1964. Dr. Adatia got in touch with Dr. Motwani on 6 October and gave him that message. Dr. Adatia rang up the appellant on 6 October and asked for adjournment. The appellant granted the adjournment to 7 October. On 6 October there were two calls from the appellant asking Dr. Adatia to attend the Coroner’s Court on 7 October and also that Dr. Adatia should contact the appellant on 6 October. Dr. Motwani rang up the appellant and told him that the telephonic conversation had upset Dr. Adatia. On 6 October Dr. Motwani conveyed to Mugwe, Director of Intelligence Bureau about the demand of bribe to the appellant. These are the facts found by the Court. These facts prove that the offence was committed.

The last contention on behalf of the appellant was that the sentence of imprisonment should be set aside in view of the fact that the appellant paid the fine of Rs. 10,000. In some cases the Courts have allowed the sentence undergone to be the sentence. That depends upon the fact as to what the term of the sentence is and what the period of sentence undergone is. In the present case, it cannot be said that the appellant had undergone any period of sentence. If it is said that the appellant had heart attacks and therefore the Court should take a lenient view about the sentence the gravity of the offence and the position held by the appellant at the relevant time do not merit such consideration.

For these reasons, the appeal is dismissed. The appellant
will surrender to his bail and serve out the sentence.

SC Appeal dismissed.

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