Gauhati High Court
State Of Assam And Ors. vs Omega Printers And Publishers Private ... on 27 September, 1994
Equivalent citations: AIR1995GAU49, AIR 1995 GAUHATI 49, (1995) 1 GAU LR 161
Author: S.N. Phukan
Bench: S.N. Phukan
JUDGMENT Khanna, C.J.
1. The present appeal has been filed by the State of Assam and others against the judgment and order of the learned single Judge passed in Civil Rule No. 1848 of 1993 on 4-4-94.
2. We have heard Mr. S. N. Bhuyan, learned Advocate General, appearing for the State of Assam assisted by Mr. A. C. Sarraa, Government Advocate and Mr. P. K. Goswami, Senior Advocate assisted by Mr. A. C. Borbora and Mr. S. S. Goswami, Advocates appearing for the contesting respondents.
3. At the outset, it may be mentioned that the Court ordered the original records of the Government pertaining to this case be produced before the Court in case the same are so required. It may also be mentioned that Mr. S.N. Bhuyan, learned Advocate General, Assam has filed before us an undertaking which has been signed by the Additional Director of Information and Public Relation Department, Government of Assam and the said document has also been taken on the record of the case. During the hearing of the Civil Rule, the State of Assam had not filed any affidavit-in-opposition despite time being granted by the Court.
4. The relevant facts for the purpose of deciding the present appeal are that the petitioner-respondent I is a private limited company which publishes an English daily --'Sentinel'. The petitioner-respondent 2 is the Printer and Publisher of the aforesaid , newspaper. It is claimed that the paper has a circulation of about 42,000 and the paper is sold throughout the North-Eastern Region.
5. The newspapers which are being published get advertisement from the Government in accordance with the advertisement policy which is contained in Annexure 'A' to the Civil Rule. In order to receive Government advertisement the daily newspaper must have a paid circulation at least 5000 copies with a minimum 325 issues in a year with 4 pages with print area of not less than 45 cm x 7 standard columns, devoting at least 60% of the print area for reading and other, non-advertisement materials. The petitioners-respondents claim that their newspaper 'Sentinel' is covered under the aforesaid policy. The policy also prescribes that no Government department can directly issue advertisement to any newspaper and it is the Director of Information and Public Relation, Assam who issues the orders of publishing advertisement by various departments and the necessary funds for this purpose are allotted in the annual budget of the Directorate of Information and Public Relation and it is the Directorate which makes the payment of advertisement bills. The policy requires preparation of list of approved newspapers by the State Government for the purpose of giving advertisement and the paper printed by the petitioners-respondents 'Sentinel' has been approved by the State Government.
6. The main grievance of the petitioners-respondents raised in the Civil Rule was that they were allotted less advertisement in the period starting from January to June '93. The charts have been annexed to the Civil Rule as Annexure 'B' to 'D' giving a detailed statement regarding allotment of Government Advertisements to various newspapers. The petitioners-respondents have stated in the Civil Rule that another English daily, namely, 'Assam Tribune', having similar publication and circulation or even lower category of dailies like 'North East Express' and 'Assam Express' have been allotted with much higher number of advertisements. During the period from January to June '93 the following figures have been given in respect of these newspapers:
i). Assam Tribune -- 507 ii). Assam Express -- 226 iii). NE Times -- 105 iv). Sentinel -- 73
It was stated that on June 3, ,1993, the Managing Director of the petitioner-respondent I wrote a letter to the fourth respondent-appellant about the drastic reduction of allotment of Government advertisement and brought to his notice that the other similarly situated local dailies are being favoured with high number of advertisement and a request was made that the newspaper 'Sentinel' may also be treated equally in this matter.
7. The petitioners-respondent's argument before the learned single Judge that tapering down the quantity of advertisement to the petitioners' only was for the purpose other than the purpose mentioned in Annexure 'A' to the Civil Rule and giving of less advertisement was for an oblique purpose just to silence the paper which was very vocal against the wrong action of the Government. It was also submitted before the learned single Judge that the petitioners' daily might have incurred the displeasure of the Authority having power to give advertisement because of various articles, news, reports and criticism against various departments of the Government.
8. It was urged by the counsel appearing for the petitioners-respondents that by the impugned action of the respondents the declared policy of the Government has been violated and the public have been deprived of widest possible coverage and the impugned action of the respondents has impaired the freedom of the press and violated the rights guaranteed under Articles 14 and 19(1)(a) of the Constitution by which the circulation of the petitioners-respondents' newspaper is being adversely affected. It was further urged that the action of the respondents-appellants has made it impossible for the petitioners-respondents to compete with the other papers at the present price and therefore the said action of the respondents is discriminatory and based on classification without any rational basis and that the Government has exercised the power maliciously towards the petitioners-respondents.
9. At the outset, Mr. Bhuyan, learned Advocate General, Assam, has made a statement that advertisements to the papers are being released as was done in the past. In this connection, Mr. Bhuyan has drawn our attention to a statement given in Writing by the Additional Director of Information and Public Relation which we have taken on record. The said statement reads:
"In view of the improvement currently noticed in the performance of the paper, we are agreeable to resume issuance of advertisement to the paper in the usual manner in accordance with the Government Advertise-
ment Policy and rules framed thereon without any discrimination."
10. Mr. P. K. Goswami, learned counsel appearing for the Sentinel, has stated before us that the policy which has been framed by the Government in connection with the issuing of advertisement to the newspapers is not being challenged by him. According to him, the only challenge in the writ petition which has been made by the petitioners-respondents (Sentinel) was that the respondents arbitrarily withholding advertisements to the petitioners-respondents' paper and having given advertisement to other papers which violated the fundamental rights of the petitioners under Articles 14 and 19(1)(a) of the Constitution. Reliance has mainly been placed on the decisions of the Supreme Court in the cases of Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578, Bennet Coleman and Co. Ltd. v. Hindustan Times Ltd., AIR 1973 SC 106 and on a decision of the Supreme Court in the case of Printers (Mysore) Ltd. v. Assistant Commercial Tax Officer, J. T. 1994 (1) (sic): (1995 AIR SCW 204) and also on a Division Bench of this Court in the case of Dainik Sambad v. State of Tripura, 1988 (I) GLJ 486 : AIR 1989 Gau 30.
11. Mr. Bhuyan, learned Advocate General appearing for the State of Assam, has stated that an affidavit by the State was filed in the Civil Rule on 24-3-94, that is, after the arguments were over. A copy of the aforesaid affidavit has been filed as Annexure I to the Memo, of Appeal which we had taken into consideration as, in our opinion, the question involved in the present case are of general public importance.
12. A bare perusal of the affidavit filed by the State Government shows that the State Government has exercised the power of re-gulation, as according to the Director, the paper has violated certain guidelines. In this connection, it may be rioted that the original records have been produced before us. The precise case of the State Government is that they have reduced allotment of advertisement to the paper as it was not following the guidelines. It is not disputed that the paper was never informed that it was violating the guidelines and the action taken by the Director was on the supposition that the State Government can act on its discretion and take a decision about reducing allotment of advertisement to the papers falling under one category as a measure of regulation till the paper starts following guidelines.
13. As the appellants-respondents had not filed any counter-affidavit in the Civil Rule and considering the importance of the question, we have permitted the appellants to file an affidavit-in-opposition to the contentions contained in the Civil Rule, to which a reply has also been filed by the respondents-petitioners, it will be useful for the purpose of deciding the controversy in this case to note the stand taken by the appellants in the affidavit-in-opposition filed on behalf of the appellants. In paragraph 6 of the affidavit-in-opposition it has been stated that the advertisement to the Sentinel has not been stopped as alleged, but the allotment of advertisement has been regulated by the department and the main reason for regulation of the advertise-(contd. on col. 2) ment to the newspaper was for violation of the provisions laid down in Clause 9(b)C(2) and 9(b), C(5) of the policy for release of Government advertisements. It was found that the newspaper had indulged in most controversial writings thereby aggravating and tending to cause public interest of the State and the newspaper was also found to ignore the time bound press releases issued by the State Government which effect (sic) (affect) public interest. It is also stated that it is obligatory on the part of the approved newspapers to publish all press note and press releases in an appropriate manner without affecting the contents and the format and since the petitioner company is yet to follow the Govt. policy adhered to regarding the publication of advertisements, the respondents have regulated the issue of advertisement to the newspaper.
14. The Director of Information and Public Relations, Assam has also filed before us a chart showing total number of advertisements issued month wise from January, 1993 to December, 1993, which is as follows:
Name of the paper Jan.
Feb.
Mar.
Aprl.
May June July Aug.
Sept.
Oct.
Nov.
Dec.
BIG :
1.
Assam Tribune 92 103 133 115 106 112 106 79 96 102 101 120
2. Dainik Asom 34 28 31 24 41 19 29 24 18 21 23 19
3. Ajir Baiori 27 32 35 38 39 43 39 38 40 44 50 43
4. Natun Dainik 58 57 66 63 65 65 61 48 45 50 52 49
5. Dainik Janambhumi 46 46 37 40 58 23 35 20 22 25 29 30
6. News front 23 36 25 40 48 42 29 27 28 29 27 28 MEDIUM :
7. Sonar Cachar 7 7 11 11 6 6 8 6 6 8 6 6
8. Assam Express 41 39 39 41 48 40 29 26 24 20 29 30
9. Sentinel 5 5 14 14 5 14 23 14 15 28 29 33
10. N.E. Times 22 59 54 45 33 36 34 45 37
11. N.E. Observer 33 31 16 13 21 19 17 11
12. Eastern Clarion 10 4 7 15 21 16 8 9 9 22 14
13. Ajir Asom 2 6 7 6 9 8 12 12 11 14 14 22
14. Sandhya Baton 10 12 6 7 10 3 3
15. Purbanchal Prahari 5 13 13 10 1 1 1 2
16. Uttarkal 16 24 17 22 24 27 18 15 16 14 15 14
17. Dainik Prantajyoti 10 7 5 7 4 5 8 3 3 7 3 12
18. Gati 13 6 5 7 3 7 4 4 5 3 3 4
19. News Star 12 16 15 12 14 20 9 8 11 7 9 13
20. Sentinel (Hindi) 2 1 2 1 1 1
21. Samay Prabah 4 7 4 8 7 3 5 4 4 3
22. Frontier Sun 1 2 2 1 1 2 1 1 4
15. It is thus clear that the factual averments made by the petitioners-respondents, Sentinel, that the number of advertisements which had been given had been reduced, has been accepted by the Government and a categorical stand has been taken that they have done it as a measure of regulation as the paper Sentinel was not following the guide-
lines laid down in this connection.
16. The first question which arises for determination before us is as to whether this court in exercise of Us writ jurisdiction under Article 226 of the Constitution would grant relief to the petitioners-respondents, Sentinel, on the ground that their fundamental rights under Articles 14 and 19(1)(a) and 19(1)(g) have been violated.
17. In a very recent decision in the case of The Printers (Mysore) Ltd. v. Asstt. Commercial Tax Officer, JT 1994 (1) (sic): (1995 AIR SCW 204) the apex Court has observed that -
"Freedom of press has always been a cherished right in all democratic countries. The newspapers not only publish news but also ideas, opinions and ideologies besides much else. They are supposed to guard public interest by bringing to fore the misdeeds, failing and lapses of the Government and other bodies exercising governing power. Rightly, therefore, it has been described as the Fourth Estate. The democractic credentials of a State is judged today by the extent of freedom the press enjoys in that State."
18. A Division Bench of this Court in the
--case of Dainik Sambad v. State of Tripura, 1988 (1) GU 486: (AIR 1989 Gauhati 30) had the occasion to deal with a similar controversy and after observing the various decisions given by the apex Court it held that in our Constitution there is no separate guarantee of the freedom of the press. The freedom of the press under the Constitution is not higher than the freedom of an ordinary citizen and it is subject to the same limitations as are imposed by Article 19(2) and to those limitations only. The press" cannot claim immunity from regulation of the commercial activities of a news paper without interfering with its freedom of expression. The State may restrict commercial activities of newspaper, in the public interest, insofar as that can be done without restricting the freedom of expression or circulation of a newspaper. The right to publish an advertisement cannot be said to be a part of freedom of expression, but, if a restraint on advertisement curtails circulation, it would offend Article 19(1)(a).
19. In the aforesaid case the question which is arising in the present case also came up for consideration as to whether a newspaper to which allotment of Government advertisements happened to be gradually reduced can complain of discrimination and would it affect its freedom of press requiring or justifying judicial review? The Bench of this Court in the case of Dainik Sambad (supra) held at Page 36; of AIR :
"The strongest of anti-discrimination legislation is to be found in Article 14 of the Constitution of India read with Articles 15 and 16 enabling judicial review of allegation of discrimination and to provide legal remedies to the victims of unlawful discrimination. In order to establish discrimination of a prohibited ground the complainant has to establish that others less well or no better qualified than himself received more favourable treatment and alleged discriminatory refusal of State encouragement, economic or otherwise may amount to hostile discrimination. Use of an ostensible unfettered discriminatory power may result in discrimination. Even licensing powers, it has been held, cannot be used to discriminate against political or religious opponents, as was held in Roncarelly v. Duplessis, (1952) 1 DLR 680. The Court shall strike down an order if it is found to have been based on discrimination prompted by ill-will, dislike of one's political views, favouritism or improper motives. If a discretionary power is exercised in disregard of relevant considerations or on considerations that cannot be lawfully taken into account and it results in discrimination it may be struck down.
Discriminatory allotment of government advertisements to different newspapers of the same category by the State Government will impair the freedom of press and will therefore be violative of Articles 14 and 19(1)(a) of the Constitution of India."
20. The Supreme Court in the case of Indian Express Newspapers (Bombay) Pvt. Ltd. v Union of India, (1985) 1 SCC 641 : (AIR 1985 SC 515) held that freedom of press is the heart of social and political intercourse. The press has assumed the role of the public educator. The authors of the articles published in newspapers have to be critical of the actions of the Government in order to expose its weaknesses. Such articles tend to become an irritant or even a threat to power. Governments, naturally take recourse to suppress newspapers publishing such articles. Just to get rid of these types of criticism laws are enacted. Enactment of laws providing for pre-censorship, seizures, interference with the transit of newspapers and demanding security deposit, imposition of restriction on the price of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, (Emphasis provided), increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier etc. are some of the ways and means the Government may try to interfere with the freedom of press,
21. The apex Court in the aforesaid case of Indian Express Newspapers (Bombay) Pvt. Ltd. (supra) specifically held that newspaper industry enjoys two of the fundamental rights, namely the freedom of speech and expression guaranteed under Article 19(1)(a) and the freedom to engage in any profession, occupation, trade, industry or business guaranteed under Article 19(1)(g). The apex Court further observed that freedom of expression has four broad social purposes to serve, namely, (i) it helps an individual to attain self-fulfillment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. In this case the apex Court held that a newspaper should not be hit on the financial aspect. If the Government action does so it will be unconstitutional and violative of Articles 19(1)(a) of the Constitution. If the Government imposes heavy financial burden or withdraws financial assistance which the paper may not be able to bear the burden and ultimately unable to continue. The apex Court further observed :
"While newspapers which are commercial enterprises expect to sustain themselves by sales and advertising, they are not always viable on this traditional basis. Capital and profits from other media and from business in general are often injected into the newspaper industry. In many cases, the financing, or at least the deficits are covered by Governments or political bodies. Assistance from the State has taken various forms, including tax concessions not enjoyed by other industries, reduced postal and telephone rates, guaranteed Government advertising, and subsidies to the price of newsprint."
(Emphasis provided)
22. It is thus that the law laid down by the apex Court is that if these assistance from the Government are curtailed, it may be that the newspaper will not be able to withstand the competition and in the long run it may die down. The necessary corollary which follows is that such an action of the Government would directly affect the freedom of speech and expression to which the newspaper is entitled.
23. It is also now well-settled that the Government while discharging its administrative functions cannot act arbitrarily even regarding giving of advertisements. Whatever may be the activity of the Government, it has to act on some guiding principles and cannot affect the fundamental right guaranteed under Article 14 of the Constitution and also violate the other fundamental rights guaranteed under Article 19 of the Constitution. The exercise of the power can neither be arbitrary nor capricious and the exercise of any action of the Government will have to be based on certain definite guidelines for which the power is being exercised in public interest. Even in the cases of contracts, leases, licences or granting any other largess, the action of the Government will have to be bona fide based on well-defined guidelines which may subserve the purpose for which the power is being exercised in public interest and in case the Government fails to satisfy that it has not acted on such settled principles, the action of the Government would be liable to be struck down.
24. According to the policy of the State of Assam it is clear that there is a three-tier system based on the criculation of newspapers and the advertisements are given by the Driector of Information and Public Relations on the basis of the guidelines laid down, which have not been challenged by the petitioners-respondents, Sentinel.
25. The first question on the admitted facts which therefore arises for determination is as to whether there is a power of regulation available with the Government as alleged in case newspaper is not following the guidelines. From the chart given by the Director of Information and Public Relations and the specific averment in the counter affidavit filed on behalf of the appellant at the appellate stage it is clear that the Government has exercised the power by reducing the advertisements to the paper 'Sentinel' and has been giving more advertisement to other papers.
26. After carefully considering the arguments raised, by learned counsel for the parties in this connection, we are of the opinion that in case the paper is not following the guidelines, then according to the law laid down By the apex Court the right which the paper has got under Article 19 of the Constitution is subject to the reasonable restriction and it will be well within the power of the State Government to remove the name of the paper from the approved list of papers after giving a show cause notice and an opportunity to the concerned paper and adjudicating the matter by a reasoned order to be communicated to that paper. The further question arises is as to whether besides this power the Government has the power to regulate by giving less advertisements as it is not following the policy to use the words used in the case of Dainik Sambad (supra) that is, following the carrot stick method. Can the Government convey the message by reducing the advertisement that you follow what we are saying and till then, the advertisement which normally we would have given you would be reduced. We are of the opinion that no such power can be exercised as it will be giving to the Government a power which in the context of giving advertisement can be very dangerous. If a paper is not following the guidelines and is indulging in publishing articles which are not in public interest, as has been held by us, the power of removal of the name of that newspaper from the list of approved papers is available with the Government. Further, one cannot understand that the Government comes to the conclusion that the paper is not following the guidelines and the advertisements are still being given, though in reduced numbers, till the newspaper follows the guidelines, as is understood by the Government. We are of the definite opinion that no such power of regulation by reducing advertisement when it violates the guidelines is available to the Government and the only power available to the Government is to remove the name of the newspaper from the approved list of newspapers entitled to receive advertisements.
27. This power of regulation if conferred on the Government may also be viewed from another angle. A newspaper which may be in the opinion of the Government publishing articles which fulfills the interests of a particular Government may go on receiving advertisements from which it receives lot of finance and a paper which may be writing its opinion and sometimes criticising the Government may be subjected to regulation and the effect of which may be that the revenue of that paper are affected. The other important fall out on such a Paper would be that the circulation of the paper would automatically go down. There will be a large number of newspaper readers who will subscribe newspapers which contain advertisments of the Government for varied reasons. There may be advertisements for recruitment to certain jobs. There may be certain important in-
formation which may be circulated by the Government. Newspaper readers may prefer such a paper which contains more information on these points. The automatic result of such a power of regulation would be a serious impact on the viability of a particular newspaper affecting the fundamental, right available under Articles 14 and 19 of the Constitution.
28. There is dispute as has been raised by the respondents-petitioners as to in which category petitioners-respondents' paper should be listed. This would depend on determining the facts. This power is clearly with the Director of Information and Public Relations. We are of the opinion that the paper will submit to the Director of Information and Public Relations within a week from today the entire documents and papers to prove its case that it should be included in a particular category. The Director, within two weeks of the submission of the papers, by a reasoned order, will determine the category of the respondents' paper and communicate the same to the petitioners-respondents. As now the stand of the Government is that it is releasing advertisements to the paper in a regular manner, in case the category of the petitioners' paper is changed, the advertisements to the paper, 'Sentinel, will be given equitably along with other papers falling in that category in accordance with the guidelines laid down.
29. During the course of the arguments, Mr. P. K, Goswami has urged that even regarding the payment of pending bills there is discrimination and amount is arbitrarily given to certain papers for which the" Government has a weakness. No facts have been placed before us to come to a categorical finding on this question as to what is being alleged by the petitioners-respondents, Sentinel, is correct or not. However, it is clear that if it is true that the State of Assam is not in a position to clear up the pending bills in respect of the advertisements which it has got published in certain newspapers and the amount of those bills are to be paid, there cannot be any discrimination in payment of that amount also. In our opinion if such a discrimination is practised, that will again affect the right of the petitioner and other similarly situated newspapers and will be arbitrary and discriminatory and even hit the fundamental right under Article 19. We may take an example. Supposing a particular paper has a bill of Rs. 10 lakhs which is pending payment and the other paper has a bill of similar amount, that is Rs. 10 lakhs, which is also pending. The State pays one paper the whole amount of Rs. 10 lakhs immediately and does not pay the other paper the bills which are pending on the ground that further finances are not available for making the payment. We can at once see the impact of such an action of the Government on the viability of the paper. The paper which receives the payment promptly becomes financially viable as it could get more financial resources, while the paper which is kept waiting in a que on the ground that more finances are not available, may have to face serious financial crisis. Such an action can also not to be according to the whims of the Government. If such a situation is prevailing that payment of the bills which are pending cannot be made by the State Government because of the financial stringency, then the outstanding payment of all the papers should be made according to some principle. It is expected that the State Government will act in such a manner that the bills of the newspapers in respect of the advertisements of the Government which are pending payments are released proportionately in a fair manner to all the newspapers and there cannot be any question of any picking and choosing even for the purpose of paying the outstanding bills. We make it clear that the observations which this court has made on this question is on the basis that in case such a situation is in fact prevailing as the petitioners-respondents have failed to place before us the entire materials so that this court would have been in a position to record a categorical finding of fact on the factual state of affairs.
30. The last question which arises for determination is as to whether that part of the order of the learned single Judge that the loss of the petitioners because of giving less advertisement should be compensated by giving more advertisements to the newspaper in future, is to be upheld. After considering the arguments of the learned counsel for the parties we are of the opinion that as soon as the respondents-petitioners, Sentinel, approached this court and during the pendency of the Civil Rule an order was passed that advertisements should be given to the paper 'Sentinel' in a fair manner. As has been observed above, it is now given before us in writing on 25-8-1994 that in view of the improvement currently noticed in the performance of the paper, resumption is being made to the paper 'Sentinel' in the usual manner in accordance with the Government advertisement policy and the Rules framed thereon without any discrimination.
31. On the facts and circumstances of the case, we are of the opinion that the view of the learned single Judge that the loss which the paper 'Sentinel' has suffered by receiving less advertisement should be covered by giving it more advertisement in future, is not a relief to which the respondents-petitioners, Sentinel are entitled. In case such a relief is granted, the necessary corollary which would follow is that in view of the aforesaid direction of the court the paper would start receiving more advertisements, which would result in increasing its circulation and decreasing the circulation of other papers. From the moment the respondent-petitioners approached this Court their interests were safeguarded and it is now clear that even according to the Government stand the paper 'Sentinel' is receiving advertisements in the regular manner according to the policy in this connection. Regarding categorisation of the paper 'Sentinel', we have given a specific direction to the State Government to re-determine the category. We are, thus, of the opinion that awarding of the relief by the learned single Judge that in future the paper 'Sentinel' will receive more advertisements to compensate loss which it may have suffered during the past months will not be granted by this court keeping in view the entire facts and circumstances of the case and exercising its extra-ordinary jurisdiction under Article 226 of the Constitution of India.
32. For the reasons stated above, we finally dispose of the appeal in terms of our observations made in this judgment. However, looking to the facts and circumstances of the case, the parties shall bear their own costs.