Union Of India And Others vs Bennett Coleman And Co. Ltd. And Others on 10 September, 1987

[Cites 75, Cited by 3]

Bombay High Court

Union Of India And Others vs Bennett Coleman And Co. Ltd. And Others on 10 September, 1987

Equivalent citations: 1988(3)BOMCR581

1. This petition involves an important question relating to the constitutional validity of sections 21 and 22 read with section 2(r) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as "the Act"), in its application to an undertaking connected with the publication of a newspaper. The petitioners challenge the validity of these provisions on the ground of violation of fundamental rights conferred under article 19(1)(a) of the Constitution of India.

2. Petitioner No. 1 is a joint stock company governed by the provisions of the Companies Act, 1956, and has its registered office at the Times of India Building, Bombay, while petitioner No. 2 is a shareholder and executive director of petitioner No. 1. The Times of India is published by petitioner No. 1 from New Delhi, Bombay and Ahmedabad and the Hindi newspaper Nav Bharat Times is published from New Delhi and Bombay. Jansevak Karyalaya Ltd., 8, Camac Street, Calcutta (hereinafter referred to as "Jansevak") decided to establish and commission a modern printing press with photocomposing and offset printing facilities at Lucknow. In the year 1983, Jansevak started negotiations with petitioner No. 1 with regard to the printing and publishing of editions of Times of India and Nav Bharat Times from Jansevak's press to be established at Lucknow. The negotiations resulted in agreements which are recorded in three agreements dated July 30, 1983, June 4, 1983, and October 1, 1983. In pursuance of the agreements, necessary applications were made under the Press and Registration of Books Act, 1867, and, thereafter, the first issue of the Times of India in English and Nav Bharat Times in Hindi was published from Lucknow from October 17, 1983. The City Magistrate at Lucknow who was the relevant authority under the Press and Registration of Books Act, and respondent No. 3, the authority concerned with the enforcement of the provisions of the Act, received complaints from several parties alleging that petitioner No. 1 had violated the provisions of the Press and Registration of Books Act and the Monopolies and Restrictive Trade Practices Act. Thereupon, the City Magistrate commenced proceedings under the Press and Registration of Books Act, but those proceedings were stayed in view of the writ petition filed by Jansevak in the High Court of Calcutta. The interim relief granted in that petition was challenged before the Division Bench of the Calcutta High Court, but was confirmed with slight modification. The matter was, thereafter, carried out to the Supreme Court and though the interim relief was confirmed, the Supreme Court permitted the authorities under the Act to proceed with the enquiries under the Monopolies and Restrictive Trade Practices Act.

3. Respondent No. 3 had addressed a letter dated October 5, 1983, to petitioner No. 1 communicating about the complaints received in respect of violations of the provisions of the Act and the petitioners were asked to explain the reason why prior approval under section 22 of the Act for setting up the new undertaking at Lucknow was not secured. The petitioners sent reply on October 13, 1983, denying that any new undertaking was established at Lucknow and the provisions of section 22 of the Act were violated. Respondent No. 3 thereafter served a show-cause notice dated November 30, 1983, upon the petitioners to show cause why penal action should not be taken under the provisions of the Act for violation of the requirements of the Act. After the petitioners gave reply, respondent No. 2 by order dated July 20, 1984, held that petitioner No. 1 and Jansevak were interconnected undertakings in terms of section 2(g) (i) and Explanation 1(i) of the Act. Respondent No. 2 held that though there was no common ownership, petitioner No. 1 purported to control Jansevak. It was also held that Jansevak was merely acting on behalf of petitioner No. 1. On the strength of these findings, respondent No. 2 concluded that section 22 of the Act is clearly applicable to the facts of the case and the action of the company and its officers was in violation of the provisions of section 22 of the Act. A copy of this order is annexed as exhibit "M" to the petition.

4. As a consequence of the finding recorded by respondent No. 2, a show-cause notice dated August 4, 1984, was served by respondent No. 3 on petitioner No. 1 to show cause why penal action should not be taken against the company and its officers under the provisions of section 46 read with section 53 of the Act for the violation of the provisions of the Act. Petitioner No. 1 complaints that they learnt from the officers of the respondents that the decision has already been taken to confirm the show-cause notice and to proceed with the filing of the complaint and after realising that fact the petitioners have approached this court on October 29, 1984, by filing this petition under article 226 of the Constitution of India. The petitioners claim that the expression "service" has been defined under section 2(r) and includes service in connection with purveying of news or other information and thereby an undertaking which performs service of publication of newspapers is brought within the sweep of the Act. The petitioners complained that the provisions of sections 21 and 22 required that the undertaking must seek prior permission of the Central Government for expansion of the undertakings and establishment of new undertakings and this pre-restraint on the expansion of newspapers directly affecting circulation violates article 19(1)(a) of the Constitution. The petitioners also assert that the inclusion of the Act in the Ninth Schedule in pursuance of the powers conferred by article 31B of the Constitution is illegal and the constitutional amendment in so far as it seeks to include the Act is violative of the basic structure of the Constitution. The petitioners claim that article 31C cannot save the validity of the Act as the said article was incorporated with effect from April 20, 1972, and as the Act is pre-article 31C, the protection of article 31C is not available. The petitioners claim a declaration that the provisions of section 21 and 22 of the Act are not applicable to the undertaking in respect of publication of newspaper. The petitioners also made an alternative claim that in case the constitutional challenge is not accepted, then the order passed by respondent No. 2 and copy of which is annexed as exhibit "M" to the petition is not correct.

5. In answer to the petition, D. J. Biswas, Regional Director, Company Law Board, Government of India, has filed a return sworn to on January 25, 1985, and it is claimed that the challenge to the vires of the provisions of the Act is wholly misconceived as the said Act is immune by reason of article 31C of the Constitution. It is further claimed that the Act has been enacted for giving effect to the policies of the State towards securing directive principles under article 39(b) and (c) of the Constitution and, therefore, the challenge to the Act is not permissible. The respondents further claim that the Act is also protected and is immune from the challenge by reason of article 31B read with item No. 91 of the Ninth Schedule to the Constitution. The respondents further claimed that the enactment of the legislation was with the object that the operation of the economic system does not result in the concentration of economic power to the common detriment, for control of monopolies and for prohibition of monopolies and restrictive trade practices and petitioner No. 1 have got themselves registered under section 27 of the Act and as such estopped from challenging the validity of the Act. The return relies upon the decisions of the American Court to claim that it is permissible for the Legislature to put restrictions or regulations on monopolistic undertakings including newspapers and such restrictions would not violate freedom of the press.

7. Before adverting to the contentions urged, it would be appropriate to make reference to some of the provisions of the Act. The Act received the absent of the President on December 27, 1969, and came into force with effect from June 1, 1970. The Statement of Objects and Reasons sets out that the Bill is designed to ensure that the operation of the economic system does not result in the concentration of economic power to the common detriment. The preamble of the Act sets out that the Act was enacted to provide that the operation of the economic system does not result in the concentration of economic power to the common detriment, for the control of monopolies, for the prohibition of monopolistic and restrictive trade practices and for matters connected therewith or incidental thereto. Section 2 is a definition section and and section 2(r) defines the expression "service" as follows :

"'Service' means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. "

8. The expression "undertaking" is defined under section 2(v) of the Act and, inter alia, means an enterprise which is engaged in the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind. The expression "inter connected undertakings" is defined under section 2(g) of the Act and means two or more undertakings which are interconnected with each other in the manner set out in the sub-section. Chapter III of the Act deals with the subject of concentration of economic power and is divided into three parts, Part A covering section 26. Section 20 prescribes that Part A shall apply to an undertaking if the total value of the assets of the undertaking or the assets of such undertaking together with the assets of its interconnected undertakings is not less than twenty crores of rupees. Section 21 of the Act prescribes that where the owner of an undertaking to which this Part applies proposes to substantially expand the activities, then such owner shall, before taking any action to give effect to such expansion, give to the Central Government a notice in the prescribed form. Sub-section (2) of section 21 of the Act restrains the owner of the undertaking from giving effect to the expression unless the proposal has been approved by the Central Government. Section 22 of the Act prescribes that no person or authority, other than Government, shall establish any new undertaking which, when established, would become an interconnected undertaking of an undertaking to which this Part applies, or add any new unit or division to an undertaking to which this Part applies except under, and in accordance with the previous permission of the Central Government. Section 26 of the Act demands that the undertaking to which this Part applies shall register itself with the Central Government. Section 28 in Part "C" of Chapter III deals with matters to be considered by the Central Government before according approval for expansion of an undertaking or establishment of an undertaking, and section 55 of the Act provides that any person aggrieved by the decision or order made by the Central Government under Chapter III can file an appeal within 60 days from the date of the order to the Supreme Court on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908. In other words, an appeal is provided on a substantial question of law against the order refusing approval for expansion of an undertaking or setting up of a new undertaking.

9. Shri Venugopal, learned counsel appearing on behalf of the petitioners, submitted that the provisions of sections 21 and 22 of the Act read with section 2(r) of the Act require undertakings connected with publication of newspapers and purveying of news and other information to seek prior approval of the Central Government for expansion of the existing undertaking or establishment of the new undertaking and thereby infringe the fundamental right conferred under article 19(1)(a) of the Constitution of India. Learned counsel argued that the freedom of the press is a basic feature of the Constitution of India and cannot be truncated or any ground other than for the purposes mentioned in article 19(2). It was urged that requiring the petitioners to seek prior approval of the Central Government imposes pre-restraints on the expansion of the newspaper and thereby directly affects its circulation and hence violates article 19(1)(a) of the Constitution of India. Learned counsel urged that the Act is a legislation passed in public interest for preventing concentration of economic power and not for any purposes mentioned in article 19(2) and, therefore, the restrictions may be valid and permissible under article 19(6) in respect of the right under article 19(1)(g), but cannot be sustained in respect of the right under article 19(1)(a). Learned counsel urged that the question is no longer res integra, as three decisions of the Supreme Court have concluded the issue. Article 19(1)(a) of the Constitution ensures that all citizens shall have the right of freedom of speech and expression. The freedom of the press does not find an express mention in clause (a), but it is well-settled that freedom of the press is part of the right of speech and expression and is covered by article 19(1)(a). The freedom of the press is nothing but an aspect of freedom of speech and expression and it partakes of the same basic nature and character and is indeed in integral part of free speech and expression. Freedom of the press is the most cherished and valued freedom in a democracy and democracy cannot survive without a free press. In the absence of a free and independent press, free debate and open discussion are not possible and so also the process of generating thoughts would be stifled. The fundamental right of freedom of the press is not absolute and is subject to restrictions set out under article 19(2) of the Constitution which reads as under :

"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 sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. "

10. It is well-settled that there could not be restrictions on the enjoyment of right of freedom of speech and expression save and except to achieve the objects set out under article 19(2) of the Constitution of India. Article 19(1)(g) confers a fundamental right to practise any profession, or to carry on any occupation, trade or business. Article 19(6) prescribes that nothing in sub-clause (g) shall affect the operation of any existing law in so far as it imposes reasonable restrictions on the exercise of the right. It is not in dispute that it is permissible for the State to make any law to impose restrictions on the enjoyment of the fundamental right conferred under article 19(1)(g) if such restriction is in the interest of the general public. It is, therefore, open to the State to enact legislation to impose restrictions on the right to carry on trade or business even in respect of running a news publication undertaking provided such restriction is in the interest of the general public. It is now well-settled that the fundamental right of freedom of the press conferred under article 19(1)(a) cannot be controlled or fettered with reference to the provisions of article 19(6) of the Constitution.

11. With this background, it would now be appropriate to refer to three decisions of the Supreme Court, which, according to the petitioners, settle the issue about the constitutional validity of sections 21 and 22 of the Act in relation to the newspaper industry. The first decision of the Supreme Court is in the case of Sakal Papers (P.) Ltd. v. Union of India, , where the constitutional validity of the Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960, was questioned. The newspaper Sakal which had a net circulation of 52,000 copies on week days and 56,000 copies on Sundays, used to publish a daily edition of six pages for five days in a week and four pages on one day and this daily edition was priced at 7 np. The Sunday edition consisted of ten pages and was priced at 12 np. About 40 per cent. of the space in the newspaper was taken up by advertisements and the rest was devoted to news, articles, features, views etc. The effect of the Act under challenge and of the impugned order was to regulate the number of pages, according to the price charged, prescribe the number of supplements to be published and prohibit the publication and sale of newspapers in contravention of any order made under the Act. The Act also provided for regulating by an order, made under the Act. The Act also provided for regulating by an order, the sizes and area of advertising matter contained in a newspaper. Penalties were also prescribed for contravention of the provisions of the Act or the Order. The restrictions imposed by the Act and the Order were challenged as violative of the constitutional guarantee conferred under article 19(1)(a) and the challenge was resisted on behalf of the State claiming that the prices charged for the newspaper in relation to their pages were regulated to prevent unfair competition amongst newspapers as also to prevent the rise of monopolistic combines so that newspapers may have fair opportunities of freer discussion. The State, while admitting that by the operation of the impugned order, a limitation is placed on the space which a newspaper would be able to devote to the propagation of its ideas and to news, claimed that it would be open to the newspapers to increase the space by raising the price. The State also claimed that even if the circulation is adversely affected, the fundamental right guaranteed under article 19(1)(a) will not be infringed. The challenge was also resisted on the ground that the legislation in question does not directly or indirectly deal with the subject of freedom of speech and expression, and that consequently the question of violation of the provisions of article 19(1)(a) does not arise. The Supreme Court unanimously turned down the contentions urged on behalf of the State. The Supreme Court relying upon its earlier decision in the case of Brij Bhushan v. State of Delhi, , observed that restrictions on the freedom of the press are permissible only under certain circumstances set out in article 19(2) and the impugned Act and the Order could not be justified by any of the circumstances set out in that clause. The Supreme Court observed (at page 310) :

"The right to propagate one's ideas is inherent in the conception of freedom of speech and expression. For the purpose of propagating his ideas, every citizen has a right to publish them, to disseminate them and to circulate them. He is entitled to do so either by word of mouth or by writing. The right guaranteed thus extends, subject to any law competent under article 19(2), not merely to the matter which he is entitled to circulate, but also to the volume of circulation. In other words, the citizen is entitled to propagate his views and reach any class and number of readers as he chooses subject of course to the limitations permissible under a law competent under article 19(2). "

12. Mr. Justice Mudholkar, speaking for the court, further observed in paragraph 29 of the judgment that the court must interpret the Constitution in the manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject of course to permissible restrictions. It was then observed (at page 311) :

"Bearing this principle in mind, it would be clear that the right to freedom of speech and expression carries with it the right to publish and circulate one's ideas, opinions and views with complete freedom and by resorting to any available means of publication, subject again to such restrictions as could be legitimately imposed under clause (2) of article 19. The first decision of this court in which this was recognised is Romesh Thappar v. State of Madras . There, this court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case, this court has also pointed out that freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases, this court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V. G. Row, , the question of the reasonableness of restrictions which could be imposed upon a fundamental right has been considered. This court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into the judicial verdict. In Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd. , this court has pointed out that in construing the Constitution it is the substance and the practical result of the Act of the State that should be considered rather than its purely legal aspect. The correct approach in such cases should be to enquire as to 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 restriction. In Virendra v. State of Punjab, , this court has observed at page 319 of SCR; at page 900 of AIR, as follows :

'It is certainly a serious encroachment on the valuable and cherished right of freedom of speech and expression if a newspaper is prevented from publishing its own views or the views of its correspondents relating to or concerning what may be the burning topic of the day.'

13. While dealing with the contention of the State that there were two aspects of the activities of the newspapers - the dissemination of news and views and the commercial aspect - and these two aspects are different from one another and restrictions can be placed on the latter right under clause (6) of article 19 of the Constitution in the interest of the general public, the Supreme Court held that it may well be within the power of the State to place, in the interest of the general public, restrictions on the rights of the citizen to carry on business, but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are set out in clause (6) of article 19. The right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of the citizen and if a law directly affecting it is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6) of article 19. The scheme of article 19 is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. It follows from this that the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom.

14. The question before the Supreme Court was whether the impugned enactment directly infringes on the guarantee of freedom of speech and expression and the Supreme Court observed (at page 314);

"It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something which is an essential part of that freedom. 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 and the restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. "

15. The Supreme Court then observed that the object of the impugned legislation is to regulate something which is directly related to the circulation of a newspaper, and since circulation of a newspaper is a part of the right of freedom of speech, the Act must be regarded as one affecting that freedom. The Act has selected the fact or a thing which is an essential and basic attribute of the concept of the freedom of speech, viz., the right to circulate one's views to all whom one can reach or care to reach, for the imposition of a restriction. The Supreme Court observed that the law in question was made upon the recommendation of the Press Commission but since its object is to directly affect the right of circulation of newspapers which would necessarily undermine their power to influence public opinion, it can be regarded as a dangerous weapon which is capable of being used against democracy itself. Finally, dealing with the contention that the object of the Act was to prevent monopolies, the Supreme Court observed (at page 315) :

"It was argued that the object of the Act was to prevent monopolies and that monopolies are obnoxious. We will assume that monopolies are always against public interest and deserve to be suppressed. Even so, upon the view we have taken that the intendment of the Act and the direct and immediate effect of the Act taken along with the impugned order was to interfere with the freedom of circulation of newspapers, the circumstance that its object was to suppress monopolies and prevent unfair practices is of no assistance. "

16. The second decision of the Supreme Court on which strong reliance was placed on behalf of the petitioners is in the case of Bennett Coleman and Co. Ltd. v. Union of India, , where the challenge was to the import policy for newsprint for the year April, 1972 to March, 1973. The import of newsprint was restricted under the 1955 Import Order and its restriction was challenged as violative of article 19(1)(a). Justice Ray, as he then was, speaking for the majority, referred to the earlier decisions of the Supreme Court including Sakal's case, , and observed that publication means dissemination and circulation and 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 article 19(2). In paragraph 39 of the judgment, the Supreme Court accepted the contention that the tests of pith and substance of the subject-matter and of direct and of incidental effect of the legislation are relevant to question of legislative competence but they are irrelevant to the question of infringement of fundamental rights. It was observed (at page 119) :

"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. "

17. The Supreme Court held that the various provisions of the newsprint import policy directly control the growth and circulation of newspapers and, therefore, violate article 19(1)(a). It was further observed in paragraph 75 of the judgment that the restriction on the newspapers that they can use their quota to increase circulation but not the page number violates articles 19 and 14. The Government could not determine which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of the press entitles newspapers to achieve any volume of circulation and though requirements of newspapers as to page, circulation, are both taken into consideration for fixing their quota, the newspapers should thereafter be left free to adjust page number and circulation as they with in accordance with the dictates of article 19(1)(a) of the Constitution. The Supreme Court observed that it is abridgment of the freedom of expression to prevent the common ownership unit from starting a new edition or a new newspaper.

18. The third decision of the Supreme Court is Indian Express Newspapers (Bombay) P. Ltd. v. Union of India where the imposition of import duty and the levy of auxiliary duty on newsprint was challenged on the ground of infringement of the freedom of the press by imposing a burden beyond the capacity of the industry and also affecting the circulation of the newspapers and periodicals. Mr. Justice Venkataramiah, speaking for the Bench, observed that the expression "freedom of the press" has not been used in article 19, but it is comprehended within article 19(1)(a) and the expression means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. Freedom of the press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of the press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate. The Supreme Court approved the earlier decisions in Sakal's case, , and Bennett Coleman's case, . The question before the Supreme Court was about the power of Parliament to levy tax on newsprint used by the newspaper industry and it was held that freedom of speech and expression should receive a generous support from all those who believe in the participation of people in the administration and on account of this special interest, the approach of the Government should be more cautious while levying taxes on matters concerning the newspaper industry than while levying taxes on other matters. It is true that this court has adopted a liberal approach while dealing with fiscal measures as they were found to be in public interest. While examining the taxes on the newspaper industry, the court has to reconcile the social interest involved in the freedom of speech and expression with public interest involved in the fiscal levies imposed by the Government specially because newsprint constitutes the body, if expression happens to be the soul.

19. It was urged on behalf of the petitioners that these three decisions of the Supreme Court conclude that it is not permissible for the State to put any fetters on the freedom of the press save and except the restrictions permissible under article 19(2) of the Constitution of India. The decisions also settle that any legislation passed in public interest and not for the purposes mentioned in article 19(2) could not be saved if such legislation impinges upon fundamental rights under article 19(1)(a) and to that extent the legislation would be void. It is also settled that if the legislation imposes pre-restraints on the expansion of the newspapers directly affecting circulation, then the legislation to that extent would be violative of article 19(1)(a). A legislation which imposes reasonable restrictions in public interest on commercial or business aspects of publication of newspapers would be valid under article 19(1)(g) and article 19(6) of the Constitution but would be required to be struck down if the direct effect of the legislation is curtail circulation or expansion.

20. Shri Dhanuka, learned counsel appearing on behalf of the respondents, and Shri Govilkar, learned counsel appearing on behalf of the intervener, submitted that part from the reasonable restrictions that could be imposed on the freedom of the press under article 19(2), there could be other limitations in exercise of that freedom. It was urged that where a law is designed to regulate the press as a business or as a commercial undertaking or to curb the monopoly, such a law protects the freedom guaranteed under article 19(1)(a) and there is no abridgment of the freedom of speech and expression even if such law affects the volume of desired circulation or unlimited circulation. It was urged that the impact of such legislation upon the freedom of the press is secondary and indirect. Shri Dhanuka also urged that where economic and tax measures like law of Monopolies and Restrictive Trade Practices, Labour and Social Welfare Legislations are enacted for industries as a whole including the newspaper industry, then such legislation does not constitute abridgment of the freedom of the press. It is not possible to accept this line of argument advanced on behalf of the State in view of the dictum laid down by the Supreme Court in Sakal's case, . The Supreme Court clearly held that if a law directly affecting the freedom of the press is challenged, it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6) of article 19. It was also held in Sakal's case, , that the object of legislation in suppressing monopolies and preventing unfair practices is not enough to save the legislation if it interferes with the freedom of circulation of newspaper. In my judgment, the submission urged on behalf of the State cannot be entertained in view of the three decisions of the Supreme Court noticed hereinabove.

21. It was also urged by Shri Dhanuka that the provisions of the Act are regulative in character and the object of the Act, as set out in the preamble, is to provide that the operation of the economic system does not result in the concentration of economic power to the common detriment and such legislation would not offend the freedom of the press. It was contended that sections 21 and 22 of the Act affect only those undertakings whose assets are not less than twenty crores of rupees and if the legislation prescribed that such undertakings should secure prior permission of the Central Government before giving effect to the expansion of an undertaking or setting up of a new undertaking, then such regulation would not be unreasonable or arbitrary. It was further contended that section 28 of the Act prescribes the guidelines to be borne in mind by the Central Government before according approval for expansion or setting up of a new undertaking and section 55 of the Act provides for an appeal to the Supreme Court against the order passed by the Central Government. These provisions, says Shri Dhanuka, merely regulate the operation of monopolistic undertakings and were not intended to encroach upon the freedom of the press and would not directly affect the exercise of freedom. The submission urged by learned counsel cannot be accepted. The Act is undoubtedly enacted with the object of controlling the economic system so as not to result in concentration of economic power to the common detriment and there was undoubtedly a need for such legislation. The Act provides that monopolistic undertakings should not expand or should not set up a new establishment without the prior approval of the Central Government and this is undoubtedly a pre-restraint on such undertakings. The important question which requires determination is whether such a pre-restraint to expansion or circulation, in the case of a newspaper industry, is violative of article 19(1)(a) and in determining this question, it is wholly irrelevant whether the Act is regulative in character or otherwise. It is undoubtedly true that the object and the subject of the impugned provisions is to regulate growth but in achieving that object, if the legislation commits an inroad into the fundamental rights of the freedom of the press, then any such pre-restraint would be violative. The fact that the exercise of regulative powers is permitted only in accordance with the guidelines given under the statute and is also subject to an appeal is not enough to claim that it is unlikely that the freedom of the press would be in danger. The question is not whether such powers would be exercised bonafide or otherwise, but whether existence of such powers and compulsion to submit to the power encroaches upon freedom of the press. The answer is in the affirmative. The decision in Bennett Coleman's case, , was approved in the case of Maneka Gandhi v. Union of India, , and Mr. Justice Bhagwati, as he then was, observed in paragraph 68 of the judgment after referring to Bennett Coleman's case, :

" The majority took the view that it was not the object of the newsprint policy or its subject-matter which was determinative but its direct consequence or effect upon the rights of the newspapers and since 'the effect and consequence of the impugned policy upon the newspapers' was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed freedom of speech and expression and was hence violative of article 19(1)(a). The pith and substance theory was thus negatived in the clearest terms and test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case, the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject-matter of the State action but in testing the validity of the State action with reference to fundamental rights, what the court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded. "

22. It is now necessary to ascertain whether the provisions of sections 21 and 22 of the Act have a direct effect of violating the freedom of the press. It was urged on behalf of the petitioners that prior approval is required to be secured for expansion of an undertaking, as well as setting up of a new undertaking, and though the guidelines are set out in section 28 of the Act for consideration of the application for approval, it is open to the State the decline permission and thereby limit the circulation of the newspaper or the growth of the newspaper. It was urged that requiring the newspaper to approach the Central Government for exercise of the fundamental right puts a serious fetter on the newspapers. The submission is of considerable merit. Freedom of expression has various social purposes to serve. It helps an individual to attain self-fulfilment, it assists in the discovery of truth, it strengthens the capacity of an individual in participating in decision-making, and it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. The concept of freedom of speech is not restricted to confirmation of a right upon the newspaper industry; but also includes the people's right. If the people are expected to participate in the administration, then any restraint on the freedom of the press should be looked down upon. In my judgment, the pre-restraint imposed by sections 21 and 22 of the Act, as far as newspaper undertakings are concerned, directly affects the circulation and growth and thereby violates the freedom of the press. It is open to the State to enact legislation to curb monopolies and prevent concentration of economic power, but when such legislation has the direct effect of infringing the freedom of the press, then such legislation is required to be declared invalid in relation to the newspaper industry.

23. Shri Dhanuka relied upon certain observations in the Report of the Second Press Commission, but in my judgment, those observations cannot save the vice of the Act in question. In my judgment, the submission urged on behalf of the petitioners that sections 21 and 22 of the Act directly affect the expansion of the newspapers, and, therefore, its circulation and infringe article 19(1)(a) of the Constitution of India is correct and deserves acceptance.

24. Shri Dhanuka then urged by reference to certain American decisions that in the United States of America, the Anti-Trust laws directed against restrictive and monopolistic practices in trade and commerce have been applied to newspapers. The United States of America Supreme Court held in Associated Press v. United Trust (325 US 1945) that the Anti-Trust laws do not conflict with the freedom of the press guaranteed by the first amendment as that freedom does not confer the freedom to combine to keep out others from publishing newspapers. It was urged that if there is no exemption for the newspaper industry in the United States of America and the United Kingdom, then there is no justification for exempting the newspaper industry from the provisions of the Act in this country and the court should not take out the newspaper industry from the ambit of the Act on alleged violation of the freedom of the press. It is not possible to accept the submission of learned counsel for more than one reason. In the first instance, it must be remembered that in the United States of America, there is no prohibition to the growth of an industry as the doctrine of laissez faire holds the field, while in our country an unchecked and unregulated growth is not permitted as we are striving to achieve a welfare society. A reference can be usefully made to the passage on page 691 of the American Jurisprudence, second edition, volume 54 :

"There is no monopolization under 15 USC 2, if the defendant's monopoly power grows or develops as a consequence of a superior product, business acumen, or historical accident. A corporation does not violate the Sherman Act by securing a dominant position as the result of the ability, ingenuity, intelligence and industry of those who direct its activities, such as by offering a better product and furnishing better customer service. "

25. Our Constitution desires to achieve a welfare society and in achieving that object, some restrictions are called for, but such restrictions cannot limit enjoyment of the fundamental rights, unless specifically permitted by the Constitution. Secondly, the Supreme Court has pointed out the danger of relying on American decisions while dealing with the exercise of the fundamental rights including one under article 19(1)(a) and reference can be usefully made to two decisions of the Supreme Court.

26. In the case of Basheshar Nath v. CIT , it was observed in paragraph 21 of the judgment (at page 211) :

"The preamble to our Constitution, article 13 and language in which the fundamental rights have been enacted lead to one conclusion and one conclusion only that whatever be the position in America, no distinction can be drawn here, as has been attempted in the United States of America, between the fundamental rights which may be said to have been enacted for the benefit of the individual and those enacted in public interest or on grounds of public policy. Ours is a nascent democracy and situated as we are, socially, economically, educationally and politically, it is the sacred duty of the Supreme Court to safeguard the fundamental rights which have been for the first time enacted in Part III of our Constitution. The limitations on those rights have been enacted in the Constitution itself, e.g., in articles 19 , 33 and 34. But unless and until we find the limitations on such fundamental rights enacted in the very provisions of the Constitution, there is no justification whatever for importing any notions from the United States of America on the authority of cases decided by the Supreme Court there in order to whittle down the plenitude of the fundamental rights enshrined in Part III of our Constitution. "

27. In Kameshwar Prasad v. State of Bihar , while dealing with the ambit of article 19(1)(a), Mr. Justice Ayyangar, speaking for the unanimous court, observed in paragraph 8 after citing the American decisions :

" As regards these decisions of the American courts it should be borne in mind that though the First Amendment to the Constitution of the United States reading 'Congress shall make no law...... abridging the freedom of speech...' appears to confer no power on the Congress to impose any restriction on the exercise of the guaranteed right, still it has always been understood that the freedom guaranteed is subject to the police power - the scope of which, however, has not been defined with precision or uniformity. It is on the basis of the police power to abridge that freedom that the constitutional validity of laws penalising libels, and those relating to sedition, or to obscene publications, etc., has been sustained. The resultant flexibility of the restrictions that could be validity imposed renders the American decisions inapplicable to and without much use for resolving the questions arising under article 19(1) (a) or (b) of our Constitution wherein the grounds on which limitations might be placed on the guaranteed right are set out with definiteness and precision. "

28. It also cannot be overlooked that the conditions existing in the developed countries like the United States of America and the United Kingdom are not on par with the conditions in this country. In our country, radio and television - the two important media of communication are under the control of the State, and the only media of communication free from control, available to the citizens, is the newspaper. In the United States of America and the United Kingdom, the radio and television are not under the absolute control of the State and these media of communications reach the people and educate them, so also inform of the news and views which are not necessarily favourable to the Government. In our country, even the newspapers find it extremely difficult to reach every nook and corner, and the people, the majority of whom are below the poverty line, find it difficult to purchase newspapers and educate themselves on what is happening all around them. In India Express Newspapers' case, [1986] 159 ITR 856 (SC), Mr. Justice Venkataramiah observed that the purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments. The newspapers are purveyors of new and view having a bearing on public administration and very often carry material which would not be palatable to Governments and other authorities. Over the years, Governments in different parts of the world have used diverse methods to keep the press under control, and laws providing for pre-censorship, seizures, interference with the transit of newspapers, imposition of restriction on the price of newspapers, on the number of pages of newspapers, and the area are enacted. It is with a view to checking such malpractices which interfere with free flow of information, that democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression and laying down the limits of interference with it. The Supreme Court held that it is, therefore, the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate. In the face of the dictum laid down by the Supreme Court, it is futile for the State to claim that reliance should be placed on the practice prevailing in the United States of America and the United Kingdom and ignore the violation of the freedom of the press brought about by the provisions of sections 21 and 22 of the Act in connection with the newspaper undertakings. Shri Dhanuka sounded an apprehension that the monopolistic undertakings having economic power and strength would misbehave and thereby endanger democracy. The apprehension of learned counsel is without any foundation and, event, it would be inappropriate for the State to overlook what Pandit Jawaharlal Nehru has observed :

"I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press. "

29. Shri Dhanuka then urged that the Act was enacted to achieve directive principles incorporated in article 39(c) which require the State to direct its policy towards securing that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. Learned counsel argued that as the Act was enacted to give effect to the policy of the State towards securing the principles laid down in article 39(c), the legislation has got the protective umbrella of article 31C and it is not open to the petitioners to claim that the legislation or part of it is void on the ground that it abridges the rights conferred under article 19. It is not possible to accept the submission of learned counsel. Article 31C was inserted by the Constitution (Twenty-fifth Amendment) Act, 1971, and came operation with effect from April 20, 1972. The Monopolies and Restrictive Trade Practices Act, 1969, received the assent of the President on December 27, 1969, and came into force on June 1, 1970, and it is, therefore, obvious that the protective umbrella of article 31C was not available on the date when the Act came into force. It is now well-settled that if the legislation is void being violative of the rights conferred by article 14 or article 19 on the date of its enactment, then the vice cannot be overlooked by reference to article 31C which was not available on the date of enactment legislation. A reference can be usefully made in this connection to two decisions of the Supreme Court. In the case of Mahendra Lal Jaini v. State of U. P., , while examining the doctrine of eclipse, it was held (at page 1029) :

" Article 13(2), on the other hand, begins with an injunction to the State not to make a law which takes away or abridges the rights conferred by Part III. There is thus a constitutional prohibition to the State against making laws taking away or abridging fundamental rights. The legislative power of Parliament and the Legislatures of States under article 245 is subject to the other provisions of the Constitution and, therefore subject to article 13(2), which specifically prohibits State from making any law taking away or abridging the fundamental rights. Therefore, it seems to us that the prohibition contained in article 13(2) makes the State as much incompetent to make a law taking away or abridging the fundamental rights as it would be where law is made against the distribution of powers contained in the Seventh Schedule to the Constitution between Parliament and the Legislature of a State. Further, article 13(2) provides that the law shall be void to the extent of the contravention. Now, contravention in the context takes place only once when the law is made, for the contravention is of the prohibition to make any law which takes away or abridges the fundamental rights. There is no question of the contravention of article 13(2) being a continuing matter.

Therefore, where there is a question of post-constitution law, there is a prohibition against the State from taking away or abridging fundamental right and there is further provision that if the prohibition that if the prohibition is contravened, the law shall be void to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by article 13(1) which was valid when made, the law made in contravention of the prohibition contained in article 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. "

30. In the case of Excel Wear v. Union of India , it was held that article 33(c) merely the law enacted after the coming into force of the said article and the advantage of article 31C would not be available to a legislation which was still-born because of violation of articles 14 and 19 on the date of its enactment. This decision also approves the earlier two decisions of the Supreme Court in the case of Keshavan Madhava Menon v. State of Bombay, , and in the case of Deep Chand v. State of U. P., . In view of these decisions, it is obvious that the protection of article 31C is not available to sections 21 and 22 of the Act which was enacted in the year 1969 and came into force from June 1, 1970.

31. Shri Dhanuka then urged that the Act was introduced in the Ninth Schedule as item No. 91 on August 10, 1975, and was, therefore, entitled to enjoy the protection of article 31B of the Constitution and it is not permissible for the petitioners to claim that the provisions of the Act are inconsistent with or take away or abridge any of the rights conferred by Chapter III of the Constitution of India. In answer to the submission it was urged on behalf of the petitioners that the freedom of speech including the freedom of the press forms part of the basic structure of the Constitution and, therefore, violation of that fundamental right is open to challenge. Reference was made to the decision of the Supreme Court in Kesavananda Bharati's case, , where the majority held that through by article 368 of the Constitution of India, Parliament is given power to amend the Constitution, that power cannot be exercised so as to damage the basic features of the Constitution and so as to destroy its basic structure. In Kesavananda Bharati's case, , illustrations have been given to indicate what are the basic features of the Constitution and Mr. Justice Mathew has summarised them in paragraph 264 of his judgment in the case of Indira Nehru Gandhi v. Raj Narain, . The learned observed (page 2372).

"In His Holiness Kesavananda Bharati's Sripadagalavaru v. State of Kerala (hereinafter referred to as 'Bharati's case'), a majority of seven judges held that the power conferred under article 368 of the Constitution was not absolute. They took the view that by an amendment, the basic structure of the Constitution cannot be damaged or destroyed. And, as to what are the basic structures of the Constitution, illustrations have been given by each of these judges. They include supremacy of the Constitution, democratic republican form of Government, secular character of the Constitution, separation of powers among the Legislature, executive and judiciary, the federal character of the Constitution, Rule of Law, equality of status and of opportunity; justice, social, economic and political; unity and integrity of the nation and dignity of the individual secured by the various provisions of the Constitution. There was consensus among these judges that democracy is a basis structure of the Constitution. I proceed on the assumption that the law as laid down by the majority in that case should govern the decision here, although I did not share the view of the majority. "

32. It is, therefore, clear that Kesavananda Bharati's case, , lays down that democracy is a basic structure of the Constitution. Shri Venugopal submitted that the press is an important ingredient of democracy and in support of this submission relied upon the observations made by the Supreme Court in several cases. In the case of Romesh Thappar v. State of Madras, , Mr. Justice Patanjali Sastri, speaking for the majority, observed (at page 128) :

"Thus, very narrow and stringent limits have been set to permissible legislative abridgement 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 organisations, for without free political discussion, no public education, so essential for the proper functioning of the processes of popular Government, is possible. "

33. In the case of Brij Bhushan v. State of Delhi, , it was held that it must be recognised that the freedom of speech and expression is one of the most valuable rights guaranteed to a citizen by the Constitution and should be jealously guarded by the courts. It must also be recognised that free political discussion is essential for the proper functioning of a democratic Government and the tendency of modern jurists is to depreciate censorship. The observations of the Supreme Court in paragraph 42 in Sakal's case, , also support the contention that the press is an important ingredient of democracy. In Maneka Gandhi's case, , Mr. Justice Bhagwati, as he then was, observed in paragraph 77 of the judgment (at page 640) :

"Now, it may be pointed out at the outset that it is not our view that a right which is not specifically mentioned by name can never be a fundamental right within the meaning of article 19(1). It is possible that a right does not find express mention in any clause of article 19(1) and yet it may be covered by some clause of that article. Take for example, by way of illustration, the freedom of the press. It is the most cherished and valued freedom in a democracy : indeed democracy cannot survive without a free press. Democracy is based essentially on free debate and open discussion, for that is the only corrective of governmental action in a democratic set up. If democracy means government of the people, by the people, it is obvious that every citizen must be entitled to participate in the democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion, in the most comprehensive sense, are not possible unless there is a free and independent press. Indeed, the true measure of the health and vigour of a democracy is always to be found in its press. Look at its newspapers - do they reflect diversity of opinions and views, do they contain expression of dissent and criticism against governmental policies and actions, or do they obsequiously sing the praises of the government or lionize or deify the ruler. The newspapers are an index of the true character of the Government - whether it is democratic or authoritarian. It was Mr. Justice Potter Stewart who said : 'without an informed and free press, there cannot be an enlightened people.' Thus, freedom of the press constitutes one of the pillars of democracy and indeed lies at the foundation of democratic organisation and yet it is not enumerated in so many terms as a fundamental right in article 19(1), though there is a view held by some constitutional jurists that this freedom is to basic and fundamental not to receive express mention in Part III of the Constitution. "

34. The observation of the Supreme Court in paragraph 32 of Indian Express Newspapers' case [1986] 159 ITR 856 also reiterates this view. Shri Justice A. P. Sen in the case of Express Newspapers Pvt. Ltd. v. Union of India , observed in paragraph 76 of the judgment :

"I would only like to stress that the freedom of thought and expression, and the freedom of the press are not only valuable freedoms in themselves but are basic to a democratic form of Government which proceeds on the theory that problems of the Government can be solved by the free exchange of thought and by public discussion of the various issues facing the nation. It is necessary to emphasize and on must not forget that the vital importance of freedom of speech and expression involves the freedom to dissent in a free democracy like ours. Democracy relies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty - freedom of speech, which our court has always unfailingly guarded. "

35. It is, therefore, clear that it has been consistently held by the Supreme Court that the press is an important ingredient of democracy and, therefore, freedom of the press conferred by article 19(1)(a) must be considered as a basic structure of the Constitution.

36. It is also settled by the decisions of the Supreme Court that a legislation is open to challenge and is liable to be struck down even if it is included in the Ninth Schedule, in case it affects the basic structure of the Constitution. It is not necessary for the courts to strike down the entire legislation and it is permissible to strike down any provision thereof which violates article 19 or article 14 of the Constitution of India. A reference can be usefully made to the decision of the Supreme Court in the case of Maharao Saheb Shri Bhim Singhji Anantalakshmi Pathabi Ramasharma Yeturi v. Union of India, , where the entire Urban Land (Ceiling and Regulation) Act, 1976, was challenged as suffering from the vice of articles 14 and 31. The Act received the assent of the President in February, 1976, and was enacted in furtherance of the directive principles contained in articles 39(c) and (d) respectively. The Act was also put in the Ninth Schedule by the Constitution (Fortieth Amendment) Act, 1976, conferring the benefit of the protective umbrella under article 31B. The majority held that the entire Act is valid save and except section 27(1) in so far as it imposed a restriction on transfer of any urban or urbanisable land with a building or of a portion of such building which is within the ceiling area. The Supreme Court struck down the provisions of section 7(1) of the Act in spite of the Act enjoying the protective umbrella of both articles 31B and 31C. It is, therefore, obvious that in case an enactment destroys or damages the basic structure of the Constitution, then in spite of its being included in the Ninth Schedule, would not oust the jurisdiction of the courts from striking down the enactment or any provisions thereof, if it violates the fundamental rights under articles 14 and 19 of the Constitution. The petitioners are, therefore, entitled to claim that the provisions of sections 21 and 22 of the Act are violative of article 19 in so far as they concern newspaper undertakings.

37. Shri Dhanuka countered the submission urged on behalf of the petitioners by contending that article 39(b) and (c) are part of the basic structure and, therefore, it is not possible to claim that any legislation for achieving the object under article 39(c) would damage or destroy the basic structure of the Constitution. It was claimed that not only the legislation would not damage or destroy the basic structure, but, on the other hand, it would fortify the legislation. It was also urged by learned counsel that the directive principles contained in article 39(b) and (c) have supremacy over the fundamental rights guaranteed by Chapter III. In support of the submission, reliance was placed on the observations of the Supreme Court in the case of Waman Rao v. Union of India, , and in the case of Maharao Saheb Shri Bhim Singhji v. Union of India, . In Waman Rao's case, the validity of article 31C, as it stood prior to its amendment by the Forty-second Amendment Act, 1976, was questioned claiming that it damaged the basic or essential features of the Constitution or its basic structure. The Chief Justice Chandrachud, speaking for the majority, turned down the contention and in paragraph 55 of the judgment observed (at page of 291 of AIR 1981 SC) :

"The unamended portion of article 31C is not like an uncharted sea. It gives protection to a defined and limited category of laws which are passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39. These clauses of article 39 contain directive principles which are vital to the well-being of the country and the welfare of its people. Whatever we have said in respect of the defined category of laws envisaged by article 31A must hold good, perhaps with greater force, in respect of laws passed for the purpose of giving effect to clauses (b) and (c) of article 39. It is impossible to conceive that any law passed for such a purpose can at all violate article 14 or article 19. Article 31 is now out of harm's way. In fact, far from damaging the basic structure of the Constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of article 30 will fortify that structure. "

38. In Bhim Singhiji's case, , Mr. Justice A. P. Sen, in paragraph 81, after referring to the decision of Mr. Justice Chandrachud in the case of Smt. Indira Nehru Gandhi, , observed (at page 265) :

"According to him, the pillars of the Constitution are Sovereign Democratic Republic, Equality of Status and Opportunity, Secularism, Citizen's right to religious worship, and the rule of law. With respect, I would add that the concept of social and economic justice - to build a Welfare State - is equally a part of the basic structure or the foundation upon which the Constitution rests. "

39. Reliance was also placed on the observations made by Mr. Justice Palekar in Kesavananda Bharati's case, , that article 31C merely removes the restrictions of Part III from any legislation giving effect to the directive principles under articles 39(b) and (c). Relying on these observations, Shri Dhanuka contended that articles 39(b) and 39(c) are part of the basic structure and, therefore, it is futile for the petitioners to claim that the Act which was legislated for securing the object of article 39(c) would affect the basic structure.

40. Before examining the contention advanced by Shri Dhanuka, it is necessary to point out that the Supreme Court did not accept the claim in Minerva Mills' case, , that the directive principles would have supremacy over the fundamental rights in Part III. The majority held that the fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in judgments of the Supreme Court as "transcendental" "inalienable" and "primordial". It was observed that the fundamental rights constitute the ark of the Constitution and to destroy the guarantees given by Part III in order to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. The Indian Constitution is founded on the bedrock of the balance between Parts III and IV and to give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between the fundamental rights and the directive principles is an essential feature of the basic structure of the Constitution. The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts ipso facto destroys an essential element of the basic structure of our Constitution. In view of the dictum laid down by the Supreme Court, it is not possible to accept the submission of Shri Dhanuka that articles 39(b) and 39(c) have primacy over article 19 in Part III and, therefore, the Act enacted with the object of securing the requirement of article 39(b) cannot be declared unconstitutional or violative of article 19.

41. The submission on behalf of the State that articles 39(b) and 39(c) are part of the basic structure and, therefore, the legislation passed with the object of securing those principles can never damage or destroy the basic structure was seriously controverted by Shri Venugopal. Learned counsel urged that the observations of the Chief Justice Chandrachud in Waman Rao's case, , that it is impossible to conceive that any law passed for such a purpose can violate article 14 or article 19 are obiter on in any event were made without full argument on the point. Learned counsel gave an illustration in support of this submission that a law passed for achieving the purpose of article 39(c) could very well violate article 19. It was urged that the State may nationalise the newspaper industry by claiming that it is necessary to secure the operation of the economic system to prevent concentration of wealth and would claim that the Nationalisation Act was enacted for achieving the object of article 39(c). It was submitted that such a legislation though enacted with the object of securing the directive principles under article 39(c) would directly result in destroying the freedom of the press and thereby the existence of the democracy. Learned counsel wondered whether the Chief Justice would have made the observations in the case of Minerva Mills, , if such contingency was brought to the notice of the learned Chief Justice. There is considerable merit in the submission of learned counsel. It is not difficult to conceive of a legislation which the State would enact for achieving the directive principles set out in articles 39(b) and 39(c) and still such legislation or any provision thereof would directly have the effect of destroying the fundamental rights guaranteed under articles 14 and 19. In my judgment, it is not possible to accept the submission urged on behalf of the State that once it is established that the legislation was enacted for securing the object set out in article 39(c), then it is not open to the court to enquire as to whether such legislation damages or destroys the basic structure of the Constitution. In may judgment, the area of enquiry on this aspect is not closed though it is possible that in a large number of legislations, the basic structure would be fortified if the object of the legislation is true and bona fide for giving effect to the directive principles contained in article 39(b) and (c) of the Constitution. In my judgment, even if the legislation is enacted with the object of achieving the directive principles under article 39(c), it should not damage or destroy the basic structure of the Constitution and then and then only the harmony between the fundamental rights and the directive principles would be maintained. In my judgment, applying this principle, it will be held that the provisions of sections 21 and 22 of the Act in so far as they apply to the newspaper industry affect the basic structure and, therefore, the challenge to these provisions as violative of article 19 is available in spite of the insertion of the enactment in the Ninth Schedule.

42. In view of the conclusion that the provisions of sections 21 and 22 read with section 2(r) of the Act, as far as newspaper undertakings are concerned, infringe article 19(1)(a) of the Constitution and, therefore, void, it is not necessary to examine the alternate submission of the petitioners that the finding recorded by respondent No. 2 that petitioner No. 1 and their officers have acted in violation of the provisions of section 22 of the Monopolies and Restrictive Trade Practices Act, 1969, is erroneous, but I propose to consider that submission also to complete the judgment. The impugned order, the copy of which is annexed as exhibit "M" to the petition, was passed by respondent No. 2 on July 20, 1984. Respondent No. 2 held that petitioner No. 1 controlled Jansevak and the agreement entered into by petitioner No. 1 with Jansevak amounted to establishment of a new undertaking at Lucknow for publication of the Lucknow edition of Times of India and Navbharat Times. Respondent No. 2 recorded this conclusion on the strength of the finding that the editor of Times of India, Bombay, was also acting as an editor of Lucknow Edition and is under the control of the board of directors of petitioner No. 1 but not Jansevak. Secondly, the agreement specifically provided that Jansevak shall follow the same policy and editorial norms and standards for the Lucknow editions of the papers as followed by other editions of the respective papers.

43. The third reason recorded by respondent No. 2 is that petitioner No. 1 had materially assisted the new undertaking - Jansevak - in establishing printing and publishing undertakings, and the last ground is that the perusal of the agreement entered into between petitioner No. 1 and Jansevak shows that Jansevak was merely acting for and on behalf of the company. Shri Venugopal challenged the impugned order by submitting that the show-cause notice dated November 30, 1983, a copy of which is annexed as exhibit "H" to the petition, alleges that petitioner No. 1 controls Jansevak which is an interconnected undertaking within the meaning of section 2(g)(iii) (a) and (c) and section 2(g)(vi) read with Explanation I(ix) but the final order of respondent No. 2 does not specifically record that Jansevak was an interconnected undertaking. It is not possible to accept the submission of learned counsel. It must be remembered that respondent No. 2 is not a judicial officer but was exercising quasi-judicial powers and it would not be fair to read the impugned order as it is a judgment delivered by a civil court. It is necessary to read the order as a whole and on perusal of the same, it is clear that respondent No. 2 did come to the conclusion that Jansevak is an interconnected undertaking under the absolute control of petitioner No. 1. Shri Venugopal then urged that the reasons given by respondent No. 2 for recording that finding are not correct. It was urged that the editor is never under the control of the board of directors of the newspaper undertaking but the editor is independent and is entitled to determine as to how the paper should be conducted.

44. The only control of the board is in laying down the policy and the execution is left to the editor and in that sphere, the board of directors cannot interfere. Reliance is placed in support of the submission on the decision of the Delhi High Court reported in [1976] ILR 1 Delhi 753. It was also urged that respondent No. 2 was in error in assuming that the advance of a large amount is indicative of the fact that petitioner No. 1 had materially assisted the new undertaking. It was urged that the amount advanced was Rs. 7.56 lakhs, but the same was given on condition of payment of interest at 18% and the amount along with interest was repaid by Jansevak. The finding of respondent No. 2 that Jansevak was merely acting as an agent is also challenged on the ground that the agreements between the petitioners and Jansevak were on the basis of principal to principal and the ingredients of agency were absent. It is not possible to accept the submission of learned counsel. It must be remembered that this court is not sitting in appeal against the order of respondent No. 2 and it is not permissible to disturb the finding recorded on reappreciation of evidence. It is not possible to hold that the order suffers from any serious infirmity and no reasonable man would have come to the conclusion on the basis of material available. Indeed, the three agreements dated July 30, 1982, June 4, 1983, and October 1, 1983, indicated that petitioner No. 1 had control over the running of the newspaper establishment at Lucknow and that control was in respect of material aspects. In these circumstances, in my judgment, it is not possible to hold that the order is erroneous or invalid. Shri Dhanuka, in this connection, very rightly pointed out that a statutory appeal is provided against the impugned order and the petitioners ought to have approached the Supreme Court by filing that appeal in accordance with the provisions of section 55 of the Act. In my judgment, it is not possible to disturb the order passed by respondent No. 2 in the present proceedings. The issuance of the notice, a copy of which is annexed as exhibit "N" to the petition calling upon the petitioners to show cause why penal action should not be taken for contravention of the provisions is only a sequitur to the finding recorded by respondent No. 2 that petitioner No. 1 had acted in contravention of section 22. The said notice is legal, but for the finding that the provision of sections 21 and 22 are void in so far as newspaper undertakings are concerned.

45. That leaves me with the question of what reliefs should be granted to the petitioners. Shri Dhanuka very rightly submitted that it is not necessary to declare that the entire Act is void in respect of newspaper industry. In fact, Shri Venugopal very fairly stated that the petitioners are not challenging all the provisions of the Act, but are merely seeking a declaration that the provisions of sections 21 and 22 read with section 2(r) of the Act are void, in so far as its application to newspaper industry are concerned. It is now well-settled that the court in exercise of its writ jurisdiction can mould the reliefs which could be given to the petitioners and, in my judgment, it is necessary to mould the reliefs so as not to exclude application of other provisions of the Act to the newspaper industry.

46. Accordingly, the following relief is granted :

(1) It is declared that sections 21 and 22 of the Monopolies and Restrictive Trade Practices Act, 1969, are void and are of no effect, in its application to the newspaper understanding.

(2) The respondents are restrained by a writ of prohibition from applying in any manner the provisions of sections 21 and 22 of the Monopolies and Restrictive Trade Practices Act, 1969, to the petitioners' publication of the newspapers and periodicals and establishment of a printing press for the said purpose.

(3) The respondents are restrained by a writ of prohibition from giving effect to the order dated July 20, 1984, passed by respondent No. 2 and the copy of which is annexed as exhibit "M" to the petition and from prosecuting the petitioners or any of their officers for violation of section 22 of the Act.

47. In the circumstances of the case, there will be no order as to costs.

48. D. R. Dhanuka Milind, R. Sathe and Sankararamkrishnan for the appellants.

49. Dr. L. M. Singhvi and J. J. Bhatt and D. D. Madon instructed by Kanga and Co. for respondents Nos. 1 and 2.

50. V. D. Govilkar for respondent No. 3.

JUDGMENT OF DIVISION BENCH Bharucha C.J.

1. Bennett Coleman and Co. Ltd. (hereinafter called "the company") publishes the newspapers "The Times of India" and "Nav Bharat Times". In 1983, a company called Jansevak Karyalaya Ltd. (Jansevak) entered into negotiations with the company for printing and publishing editions of The Times of India and Nav Bharat Times from a press to be established at Lucknow. Three agreements dated June 4, 1983, July 30, 1983, and October 1, 1983, were entered into. In pursuance of the agreements, necessary applications were made under the Press and Registration of Books Act, 1867. On October 17, 1983, the first edition of The Times of India and Nav Bharat Times were issued from Lucknow.

2. The City Magistrate at Lucknow commenced proceedings under the Press and Registration of Books Act in regard to complaints received that the provisions of that Act had been contravened. These proceedings were stayed in a writ petition filed by Jansevak in the High Court at Calcutta. The stay order, with slight modifications, remains operative and the writ petition is yet to be disposed of.

3. The appellants by their letter dated October 5, 1983, asked the company to explain, in view of complaints that had been received, why prior approval under section 22 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter called "the Act"), had not been obtained before the company had set up the new undertaking at Lucknow. The company replied. It was then served with a notice to show cause why penal action should not be taken against it for violation of the provisions of the Act. The company showed cause. By his order dated July 20, 1984, the Secretary, Department of Company Affairs, the second appellant, held that the company controlled Jansevak and Jansevak was acting on behalf of the company. The provisions of the Act were applicable and the action of the company in starting the undertaking at Lucknow was in breach of the provisions of section 22 thereof. Consequent upon the order, the company was asked to show cause why penal action should not be commenced.

4. The company and a shareholder and director then filed the writ petitioner herein. Thereby, they sought a declaration that the Act and section 2(r) thereof in particular were void and had no effect in so far as they related to the printing of news, the publication of newspapers and periodicals and the establishment of printing presses for the purpose and incidental reliefs. They also sought a writ against the appellants prohibiting them from acting upon the order dated July 20, 1984.

5. The writ petition was heard and disposed of by Pendse J. He held that sections 21 and 22 of the Act were void and had no effect in so far as they applied to newspaper undertakings. He restrained the appellants from applying the provisions of sections 21 and 22 of the company's newspapers, periodicals and printing presses and from giving effect to the order dated July 20, 1984. He held, however, that if sections 21 and 22 were found to be constitutional, the order dated July 20, 1984, could not be held to be erroneous or invalid.

6. No challenge has been raised before us on behalf of the company to the learned single judge's finding that the order dated July 20, 1984, is valid if section 22 of the Act is found to be constitutional. The challenge is restricted to the vires of sections 21 and 22 of the Act.

7. The case with which the company came to court, and which we have to consider is, broadly, this : (a) sections 21 and 22 of the Act infringe the fundamental right conferred by article 19(1)(a) and are not protected by article 19(2); (b) sections 21 and 22 are not entitled to the protection of article 31B because the Constitution (39th Amendment) Act placing the Act in the Ninth Schedule was, in so far as it contained sections 21 and 22, contrary to the basic structure of the Constitution. This was because democracy was a part of the basic structure. Freedom of expression was inherent in the concept of democracy and the freedom of the press was comprised in the freedom of expression; (c) sections 21 and 22 are not entitled to the protection of article 31C inasmuch as the Act was a pre-article 31C enactment.

8. It is necessary to set out, first, some of the relevant provisions of the Act and then of the Constitution of India.

9. The Statement of Objects and Reasons of the Act to which Mr. Dhanuka, learned counsel for the appellants, made reference shows that the Act is intended to regulate the expansion, mergers, amalgamations and the start of new undertakings by undertakings covered by the Act and to exercise control over and prohibit monopolistic and restrictive trade practices which are prejudicial to public interest. The preamble to the Act states that it is meant "to provide that the operation of the economic system does not result in the concentration of economic power to the common detriment, for the control of monopolies, for the prohibition of monopolistic and restrictive trade practices and for matters connected therewith or incidental thereto. " Section 2 is the definition section and under sub-clause (g) thereof, interconnected undertakings are defined. Where the undertakings are owned by bodies corporate, interconnected undertakings exist where, inter alia, one body corporate exercises control over the other body corporate in any manner. Clause (r) of section 2 defines service as "service of any description which is made available to potential users and includes the provisions of facilities in connection with ...... purveying of news or other information......" An undertaking is defined by clause (v) of section 2 to be "an enterprise which is, or has been, or is proposed to be, engaged in ...... the provision of services, of any kind, either directly or through one or more of its units or divisions, whether such unit or division is located at the same place...... or at a different place or...... places. "

10. We are here concerned with the provisions of Chapter III of the Act which deals with "Concentration of Economic Power". Part A thereof, by reason of section 20 within it, applies to an undertaking if the total value of the assets of such undertaking or of such undertaking and its interconnected undertakings is not less than Rs. 20 crores. The figure of Rs. 20 crores has in 1985 been substituted by the figure of Rs. 100 crores. Section 21 deals with the expansion of undertakings. We are not concerned therewith on the present facts; we may only note that its provisions are substantially similar to those of section 22, with which we are directly concerned.

11. Section 22 read thus at the relevant time :

"22. Establishment of new undertakings. - (1) No person or authority, other than Government, shall, after the commencement of this Act, establish any new undertaking which, when established, would become an interconnected undertaking of an undertaking (to which this Part applies), except under, and in accordance with, the previous permission of the Central Government.

(2) Any person or authority intending to establish a new undertaking referred to in sub-section (1) shall, before taking any action for the establishment of such undertaking, make an application to the Central Government in the prescribed form for that Government's approval to the proposal of establishing any undertaking and shall set out in such application information with regard to the interconnection, if any, of the new undertaking (which is intended to be established) with every other undertaking, the scheme of finance for the establishment of the new undertaking and such other information as may be prescribed.

(3) (a) The Central Government may call upon the person or authority to satisfy it that the proposal to establish a new undertaking or the scheme of finance with regard to such proposal is not likely to lead to the concentration of economic power to the common detriment or is not likely to be prejudicial to the public interest in any other manner and thereupon the Central Government may, if it is satisfied that it is expedient in the public interest so to do, by order accord approval to the proposal.

(b) If the Central Government is of opinion that no such approval as is referred to in clause (a) can be made without further inquiry, it may refer the application to the Commission for an enquiry and the Commission may, after such hearing as it thinks fit, report to the Central Government its opinion thereon.

(c) Upon receipt of the report of the Commission, the Central Government may pass such order with regard to the proposal for the establishment of a new undertaking as it may think fit.

(d) No scheme of finance on the strength of which the establishment of a new undertaking has been approved by the Central Government shall be modified except with previous approval of that Government. "

12. By Act No. 30 of 1984, sub-section (1) of section 22 was substituted and sub-section (1A) was added thereto. The substituted sub-section (1) and the newly added sub-section 1(A) read thus :

"22. Establishment of new undertaking. - (1) No person or authority, other than Government, shall, after the commencement of this Act, establish -

(i) any new undertaking which, when established, would become an interconnected undertaking of an undertaking to which this Part applies; or

(ii) add any new unit or division to an undertaking to which this Part applies, except under, and in accordance with, the previous permission of the Central Government:

Provided that except where as a result of the establishment of new undertaking, unit or division, an undertaking would come into existence to which clause (b) of section 20 would apply, no permission shall be required if the new undertaking, or, as the case may be, the new unit or division, when established, would not produce the same goods or provide the same services in relation to which the undertaking -

(a) of which such new undertaking would be an interconnected undertaking, or

(b) to which such new unit or division is proposed to be added, is a dominant undertaking.

(1A) No owner of any undertaking to which clause (a) of section 20 applies, shall establish, except under, and in accordance with, the previous permission of the Central Government, any new undertaking for the production, storage, supply, distribution, marketing or control of any article, or for the provision of any service, for which there is no licensed capacity, and no such permission shall be granted by that Government unless the articles which are proposed to be produced, stored, supplied, distributed, marketed or controlled, or the services which are proposed to be provided, by such new undertaking are different from the articles produced, stored, supplied, distributed, marketed or controlled, or, as the case may be, services provided, by the first mentioned undertaking and the provisions of sub-sections (2) and (3) shall apply to the establishment of such new undertaking as they apply to the establishment of a new undertaking or any new unit or division referred to in sub-section (1). "

13. In Part C of Chapter III, under section 28, are stated the matters to be considered by the Central Government before according any approval under, inter alia, Part A. The Central Government is empowered to take into account all matters which appear in the particular circumstances to be relevant and, among other things, regard is required to be had to the need, consistently with the general economic position of the country, to take into account the factors enumerated. These include the objects of having the trade organised in such a way that its efficiency is progressively increased; of encouraging new enterprises as a countervailing force to the concentration of economic power to the common detriment; and of regulating the control of the material resources of the community to subserve the common good. Under section 29, the Central Government is obliged to give a reasonable opportunity of being heard to any person who is, or may be, in its opinion, interested in the matter under its consideration. Section 30 provides the period within which the Central Government must act. Section 54(1) reads thus :

"54. Power of Central Government to impose conditions, limitations and restrictions on approval, etc., given under the Act. - (1) The Central Government may, while -

(a) according any approval, sanction, permission, confirmation or recognition, or

(b) giving any direction or issuing any order, or

(c) granting any exemption, under this Act in relation to any matter, impose such conditions, limitations or restrictions as it may think fit. "

14. Under sub-section (2) of section 54, the Central Government has the power to modify a scheme of finance submitted to it in such manner as it thinks fit and under sub-section (3), it may rescind or withdraw its approval or permission if any condition, limitation or restriction imposed by it is contravened. Section 55 enables any person aggrieved by any decision to appeal to the Supreme Court "on one or more of the grounds specified in section 100 of the Code of Civil Procedure, 1908 (5 of 1908). " Having regard to the provisions of section 100 of the Code, an appeal can lie only if a substantial question of law is involved.

15. Great stress was placed by both sides on the preamble to the Constitution. We need not reproduce it for most can recite it. Article 13(2) in Part III of the Constitution, which deals with fundamental rights, obliges the State not to "make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. " Article 19 is at the heart of the controversy in the appeal. Article 19(1)(a) states that all citizens shall have the right "to freedom of speech and expression". Sub-clause (2) of article 19 states that nothing in clause 1(a) would affect the operation of any existing law, or prevent the State from making any law which imposed "reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence". Article 19(1)(g) gives citizens the right "to practise any profession, or to carry on any occupation, trade or business". Sub-clause (6) or article 19 saves existing laws and permits the State to make laws which impose "in the interests of the general public, restrictions on the exercise of the right conferred by the said sub-clause... "

16. Articles 31B and 31C must be replaced in extensio. They read :

"31B. Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force. "

"31C. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 :

Provided that where such law is made my the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent. "

17. Part IV of the Constitution contains the Directive Principles of State Policy. Article 37 provides that the directive principles shall not be enforceable by any court but shall nevertheless be "fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. " Articles 39(b) and, particularly, (c) are of importance.

18. Thereunder "the State shall, in particular, direct its policy towards securing... (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment". Article 368 is the power conferred upon Parliament to amend the Constitution and has received much judicial consideration. The Ninth Schedule to the Constitution, which is referred to in article 31B, contains at item 91 the Act. The Act was introduced into the Ninth Schedule by the Constitution (39th Amendment) Act, 1975, with effect from August 10, 1975.

19. At the outset, we note the observations of the Supreme Court in Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India . Venkataramiah J., speaking for the court, said (at page 869 of 159 ITR) : "Our Constitution does not use the expression 'the freedom of the press' in article 19 but it is declared by this court that it is included in article 19(1)(a) which guarantees freedom of speech and expression. " This is not in dispute.

20. It is now necessary to consider the judgments of the Supreme Court in cases where allegations of infringement of the freedom of the press were made. The judgments range from the year 1950 till very recent times.

21. In Romesh Thapper v. State of Madras, , Patanjali Sastri J., speaking for the majority, said that there could be no doubt that the freedom of speech and expression included the freedom of propagation of ideas and that freedom was ensured by the freedom of circulation. Quoting a U. S. Supreme Court case, the learned judge said, "liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation, the publication would be little value". Nothing the constitutional provisions, the learned judge said that "very narrow and stringent limits have been set to permissible legislative abridgement of the right of free speech and expression and this was doubtless due to the realisation that the freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion, no public education, so essential for the proper functioning of the processes of popular Government, is possible.

22. A freedom of such amplitude might involve risks of abuse. But the framers of the Constitution may well have reflected, with Madison ... that "it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigour of those yielding the proper fruits".

23. In Brij Bhushan v. State of Delhi, , Fazl Ali J. echoed the sentiment that the freedom of speech and expression was one of the most valuable rights guaranteed to a citizen by the Constitution and had to be jealously guarded by the courts. Free political discussion was essential for the proper functioning of a democratic Government.

24. The first of the three Indian Express cases we shall be citing is Express Newspapers (Pvt) Ltd. v. Union of India . The Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 45 of 1955, was the subject-matter of the challenge. It was alleged, inter alia, that its provisions violated the fundamental right conferred by article 19(1)(a) and they did not fall within the four corners of article 19(2). The Supreme Court noted that the press was not immune from the ordinary forms of taxation nor from the application of general laws relating to industrial relations. The legislation imposed reasonable restrictions on the fundamental right in the interests of persons employed in newspaper establishments and, therefore, fell outside the categories specified in article 19(2). It was contended that its provisions had the effect of levying a direct and preferential burden on the press and had a tendency to curtail circulation and thereby narrow the scope of dissemination of information. It was likely to undermine the independence of the press by having to seek Government aid. The Supreme Court held that it could not be said that there was any ulterior motive behind the enactment because the employers might have to share a greater financial burden than before or that the working of the industry might be rendered more difficult than before. These were "incidental disadvantages which may manifest themselves in the future working of the industry. It could not be said that the Legislature in enacting the measure was aiming at these disadvantages when it was trying to ameliorate the conditions of the workmen. Those employers who were favourably situated might not feel the strain at all while those of them who were marginally situated might not be able to bear the strain and might in conceivable cases have to disappear after closing down their establishments. That, however, would be a consequence which would be extraneous and not within the contemplation of the Legislature. It could not be urged that the possible effect of the impact of these measures in conceivable cases would vitiate the legislation as such. The consequences which had been visualized by the employers, viz., the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fettered on their freedom to exercise the right, the likelihood of the independence of the press being undermined by having to seek Government aid, were all "remote and dependent upon various factors which may or may not come into play. Unless these were "the direct or inevitable consequences" of the measures enacted in the impugned statute, it was not possible to strike it down as having that effect and operation.

25. Mr. Dhanuka placed great reliance upon the observation in the first Indian Express' case but, as we shall show, they do not, having regard to the effect of section 22 upon the press, help him.

26. In Sakal Papers (P.) Ltd. v. Union of India, , are observations of great moment to the freedom of the press. The challenge was to the provisions of the Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960. Their effect was to regulate the number of pages, according to the price charged, prescribe the number of supplements to be published and prohibit the publication and sale of newspapers in contravention of any order made under that enactment. The enactment also provided for regulations to be made in regard to the size and area of advertising matter in relation to other matter. It was abundantly clear to Mudholkar J., speaking for the court, from a bare perusal of the enactment and the Order that the right of a newspaper to publish news and views and to utilise as many pages as it liked for that purpose was made to depend upon the price charged to the readers. Prior to the promulgation of the order, every newspaper was free to charge what price it chose and, thus, had a right unhampered by State regulation to publish news and views. This liberty was interfered with by the order which provided for the maximum number of pages for the particular price charged. The question was whether this amounted to an abridgment of the right of a newspaper to the freedom of expression. It might well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it was not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which was not susceptible of abridgement on the grounds set out in article 19(6). Therefore, the right of freedom of speech could not be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech could not, like the freedom to carry on business, be curtailed in the interest of the general public. It followed from this that the State could not make a law which directly restricted one freedom even though it be for securing the better enjoyment of another freedom. Viewed from this angle, it was seen that the reference to the press being a business and to the restriction imposed by the impugned statute being justified as a proper restriction on the right to carry on the business of publishing a newspaper would be wholly irrelevant for considering whether or not it infringed the freedom guaranteed by article 19(1)(a). The freedom of a newspaper to publish any number of pages or to circulate the newspaper to any number of persons was an integral part of the freedom of speech and expression. A restraint placed upon either of these was a direct infringement of the right of freedom of speech and expression. The enactment was a direct invasion on the right under article 19(1)(a) and not an incidental or problematic effect thereon as had been found in the first Indian Express case . The challenge there had failed because the impugned law did not have the effect of directly interfering wit the right of the newspaper proprietors guaranteed under article 19(1)(a). The object of the Newspaper (Price and Page) Act, 956, was to regulate something which was directly related to the circulating of a newspaper. Since the circulation of a newspaper was part of the right of the freedom of speech the enactment had to be regarded as one directed against the freedom of speech. It had selected that fact or thing which was an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate one's views to all whom one could reach or care to reach for the imposition of a restriction. It sought to achieve its object of enabling what were termed the smaller newspapers to secure larger circulation by provisions which without disguise were aimed at restricting the circulation of what were termed the larger papers with better financial strength. The impugned law, far from being one which merely interfered with the right of freedom of speech incidentally, did so directly though it sought to achieve the end by purporting to regulate the business aspect of a newspaper such a course was not permissible and the courts must be ever vigilant in "guarding perhaps the most precious of all the freedoms guaranteed by our constitution. The reason for this is obvious. The freedom of speech and expression of opinion is of paramount importance under a democratic Constitution which envisages changes in the composition of Legislatures and governments and must be preserved. No doubt, the law in question was made upon the recommendation of the Press Commission but since its object is to affect directly the right of circulation of newspapers which would necessarily undermine their power to influence public opinion it cannot but be regarded as a dangerous weapon which is capable of being used against democracy itself. " (emphasis [Here printed in italics] supplied.) It was argued that the object of the enactment was to prevent monopolies and that monopolies were obvious. The Supreme Court assumed that monopolies were always against public interest and deserve to be suppressed. Even so, upon the view it had taken that the intendment of the Act and the direct and immediate effect of the enactment and the impugned order was to interfere with the freedom of circulation of newspapers, the circumstance that its object was to suppress monopolies and prevent unfair practices was of no assistance. The legitimacy of the result intended to be achieved did not necessarily imply that every means to achieve it was permissible; for even if the end was desirable and permissible, the means employed must not transgress the limits laid down by the constitution. If they directly impugned on any of the fundamental rights guaranteed by the Constitution, it was no answer, when the constitutionality of the measure was challenged that, apart from the fundamental right infringed, the provision was legal. One of the objects of the enactment was, it was urged, to give protection to small or newly-stated newspapers and therefore, the enactment was good. Such an object might be desirable but for attaining it the State could not make inroads into the right of other newspapers which article 19(1)(a) guaranteed to them. There might be other ways of helping the small newspapers and it was for the State to search for them but the one they had chosen fell foul of the Constitution.

27. The importance of Sakal Paper's case , lies in the paramount importance it gives to the freedom of the press and because it equates the freedom of circulation with the freedom of the press. Any restriction upon circulation is treated as an infringement of the freedom of the press. It also makes clear that, however laudable the object might be it may not be permitted to be achieved by transgressing the freedom of speech and expression.

28. Another very vital case in regard to the freedom of the press concerned the company itself, Bennett Coleman and Co. Ltd. v. Union of India, . The company had challenged the provisions relating to the import policy for newsprint. They were impeached, inter alia, as constituting an infringement of the right guaranteed under article 19(1)(a). Reference was made in the curse of the judgment to the authorities which we have already discussed. In regard to Sakal's case, , the Supreme Court said that had there been held that " the freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers" The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons had been held to be an integral part of the freedom of speech and expression. This freedom was violated by placing restraints upon it or by placing restraints upon something which was an essential part of that freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the news papers" The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons had been held to be an integral part of the freedom of speech and expression. This freedom was violated by placing restrains upon it or by placing restraints upon something which was an essential part of the freedom. The true test to be applied to the interpretation of legislative measures in relation to the fundamental rights was whether the effect of the impugned action was to take away or abridge the fundamental rights. The action might have a direct effect on a fundamental right although its subject-matter might be different. The word "direct" went to the quality or character of the effect and not to the subject-matter. The object of the law was irrelevant when it established the contention about violation of the fundamental rights. The effect and consequence of the impugned policy was the direct control of the growth and circulation of newspapers. The direct effect was a restriction upon the circulation of newspapers. It was upon the growth of newspapers through pages. It was that newspapers were deprived of their area of advertisement. It was that they were exposed to financial loss The direct effect, therefore, was that the freedom of speech and expression was infringed. A newspaper expanded with its news and views. It reached different sections. It had to be left to the newspaper to adjust its newsprint. The Supreme Court commented on the submission of counsel for the Union of India 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. " "The liberty of the press", it said, "remains and 'ark of the covenant' in every democracy. Steel will yield products of steel. Newspapers give ideas. Newspapers given 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. Newspapers have to be left free to determine their pages. Their circulation and their new editions... ". The newsprint policy abridge the fundamental right of newspapers in regard to the freedom of speech and expression. Newspapers were not allowed their right of circulation. They were not allowed the right of page growth. The common ownership units of newspapers could not bring out new papers or new editions. In the garb of distribution of newsprint Government had controlled the growth and circulation of newspapers. The freedom of the press was both qualitative and quantitative. It lay both in circulation and in content the restrictions imposed by the newsprint policy constricted the news papers in adjusting their page number and circulation. The press was not exposed to any mischief of monopolistic combination. The newsprint policy was not a measure to combat monopolies. The press was not exposed to any mischief of monopolistic combination. The newsprint policy was not a measure to combat monopolies. The newsprint policy should allow newspapers that amount of freedom of discussion and information which was needed or would appropriately enable members of society to preserve their political expression to comment not only upon public affairs but also upon the vast range of views and matters needed for free society.

29. The freedom of the press is termed the " ark of the covenant" which is the concept of immutable commandments - the concept, in fact of basic structure. The judgment reiterates that the freedom of the press is both qualitative and quantitative in that it relates as much to the content of news as to the circulation of newspapers. It castigates the newsprint policy because it imposed a restriction on the circulation of newspapers and upon new editions thereof. It lays down the test to the applied to a statute, order or executive action which is alleged to infringe a fundamental right It is this: the object of the law is not relevant; what is relevant is whether the law has a direct effect on the fundamental right. All the more that this test should be applied when it is alleged that a constitution Amending act contravenes the basic structure of the constitution.

30. This brings us to a comparatively recent and, therefore, perhaps the most important judgment on the topic of the freedom of the press. It is the second Indian express case, Indian Express Newspapers (Bombay) P. Ltd. v. Union of India . The challenge was to the validity of the imposition of import duty on imported newsprint and the levy of auxiliary duty thereon, as modified by notifications issued under section 25 of the Customs Act, 1962. The contention on behalf of the newspaper was that the imposition of the import duty had the direct effect of crippling the freedom of speech and expression as it had led to an increase in the price of newspapers and the inevitable consequence of reduction of heir circulation. Venkataramiah J., speaking for the court noted that it was with a view to checking governmental malpractices which interfered with the free flow of information that democratic constitutions all over the world had made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it."It is, therefore,'the primary duty', he said 'of all the national Courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate" (emphasis [Here printed in italics] supplied). The power of government to impose taxes, he is, had to be recognise as it was inherent in the every concept of Government. In India too, there was a power to levy tax on persons carrying on the business of publishing newspapers, but the exercise of such power was subject to the scrutiny of the courts. The newspaper industry enjoyed two of the fundamental rights, viz., 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 first because it was concerned with the field of expression ad communication and the second because communication had become an occupation or profession and because there was an invasion of trade, business and industry into the field. While there could be no tax on the right to exercise the freedom of expression, tax was leviable on the tread, business and industry. Hence, tax was leviable on the newspaper industry. But when such tax transgressed into the field of freedom of expression an stifled that freedom, it became unconstitutional. The delicate task of determining when it crossed from the area of trade, business or industry into the area of freedom of expression and interfered therewith was entrusted to the courts. Taxes had to be levied for the support of Government and newspapers which derived benefit from public expenditure, could not disclaim their liability to contribute a fair and reasonable amount to the public exchequer. What, however, had to be observed in levying a tax on the newspaper industry was that it should not be an overburden in it, "The public interest" the judgment quote lord Simon of Glasidale in Attorney General v, Times Newspapers Ltd. [1973] 3 All ER 54; 3 WLR 298; [1974] AC 273 (HL) " in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may effect themselves. The freedom of expressions learned writers had observed, had four broad social purposes to serve : (i) it helped an individual to attain self-fulfillment, (ii) it assisted in the discovery of truth; (iii) it strengthened the capacity of an individual in participating in decision making and (iv) it provided a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate then freely to others. In sum, the fundamental principle involved was the people's right to know. Freedom of speech and expression, therefore, was entitled to receive generous support from all those who believed in the participation of people in the administration. It was on account of this special interest which society had in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on mattes concerning the newspaper industry than while levying taxes on other matters. It was true that the Supreme court had adopted a liberal approach while dealing with fiscal measures and had upheld different kinds of taxes levied on property, business, trade and industry as they were found to be in public interest. But in the case before it the Supreme Court was called upon to reconcile the social interest involved in the freedom of speech and expression with the public interest involved in the fiscal levies imposed by the government, specially because newsprint constituted the body, if expression happened to be the soul. In view of the intimate connection of newsprint with the freedom of the press, the test for determining the vires of a statute taxing newsprint had therefore, to be different from the tests usually adopted for testing the vires of other taxing statutes. In the case of ordinary taxing statutes, the laws might be questioned only if they were either openly confiscatory or a colourable device to confiscate. On the other hand the case of a tax on newsprint, it might be sufficient to show a distinct and noticeable burdensomeness, clearly and directly attributable to the tax. The freedom of the press meant freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. It was argued on behalf of the Government that the effect of the impugned levy being minimal, there was no need to consider the contentions urged by the newspaper. The Supreme Court quoted Lord Morris of Borth-Y-Gest in Olivier v. Buttingieg [1967] 1 Ac 115 (PC), to say that where the fundamental rights and the freedom of the individuals were being considered, a court should be cautious before accepting the view that some particular disregard of them was of minimal account. The learned Lord had observed that there was always the likelihood of the violation being vastly widened and extended with impunity. He had also quoted the words of Portia (at page 136) : "Twill be recorded for a precedent, and many an error by the same example will rush into the State". The court was not able to come to the conclusion that the effect of the levy was indeed so burdensome as to affect the freedom of he press. The court was also not able to come to the conclusion that it would not be burdensome. The court, therefore, directed the central Government to reconsider in the light of what had been said by it.

31. Once again the importance of the freedom of the press was highlighted. It was called " the very soul of democracy". It was said that the freedom of the press meant freedom from interference with the content and circulation. So important a right was this that it was " the primary duty of all the national courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it, contrary to the constitutional mandate". Acceptance of the argument that the effect would be minimal was cautioned against.

32. This brings us to the last of the cases where interference with the freedom of the press was alleged before the Supreme Court. This again was a case concerning the Indian Express (the third Indian Express' case) Express newspapers Pvt. Ltd. v. Union of India, . The newspaper challenged the constitutional validity of a notice of re-entry upon forfeiture of a lease in regard to premises whereon the newspaper business was conducted. The averment was that the action was intended to compel the newspaper to close down and it was in violation of the fundamental rights guaranteed by article 19(1)(a). The writ petitions were allowed.

33. We must now turn to the judgment of the Supreme Court in Waman Rao v. Union of India, , Which is of particular relevance to the contention in regard to article 31B. A ceiling on agricultural holdings was imposed by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, which was bought into operation on January 26, 1962. This Court had held that the provisions of this enactment and certain thereto were not open to challenge on the ground that they were inconsistent with or took away or abridged any of the rights conferred by Part III of the constitution since these enactments had been placed in the Ninth Schedule by the Constitution 17th and 40th Amendment Acts. In the proceedings before the Supreme court, the main challenge was to the constitutionality of articles 31A , 31B unamended article 31C Chandrachud J., speaking for the majority, noted the judgment in Kesavananda Bharati , where it had been held that in exercise of the power conferred by article 368, the Constitution could not amended so as to damage or destroy the basic structure of the Constitution. He observed that every case in which the protection of a fundamental right was withdrawn would not necessarily result in damaging or destroying the basic structure of the constitution. The question as to whether the basic structure was damage or destroyed in any given case would depend upon which particular article of Part III was in issue and where what was withdrawn was quintessential to the basic structure of the Constitution. The constitution First and Forth Amending Acts which introduced articles 31A and 31B into the Constitution with retrospective effect for the extinguishment or modification of rights in lands hold or let for purposes of agriculture or for purposes ancillary thereto strengthened rather than weakened the basic structure of the Constitution. It might happen that while existing inequalities were being removed, new inequalities might arise marginally and incidentally. Such marginal and incidental inequalities could not damage or destroy the basic structure of the Constitution. In so far as article 31B was concerned it did not define the category of laws which were to revive its protection and it afforded protection to the Schedule-laws against all the provisions of part III of the Constitution. No enactment could be placed in the Ninth Schedule except by parliament and, since it was a part of the Constitution on additions or alterations could be made therein without complying with the restrictive provisions governing amendments to the Constitution. Article 31B read with the Ninth Schedule provided a protective umbrella to all enactments included in that Schedule no matter of what character, kind or category they might be Article 31B empowered Parliament to include in the Ninth Schedule such laws as it considered fit and proper to include therein. The 39th Amendment had undertaken "an incredibly massive program to include items 87 to 124 while the 40th Amendment had added items 125 to 188 to the Ninth Schedule" in one stroke. The Supreme Court drew a line, treating the decision in Kesavananda Bharti, , as the land mark Several enactments were put in the Ninth Schedule prior to that decision on the supposition that the power of Parliament to mend the Constitution was wide and untrammelled. The theory that parliament could not exercise its amending power so as to damage or destroy the basic structure of the Constitution was propounded and accepted for the first time in Desavananda Bharati's case, . This was one reason for upholding the laws incorporated in the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati , was rendered. These laws and regulations would not be open to challenge on the ground that they were inconsistent with or took away or abridge any of the rights conferred by any of the provisions of part III of the constitution Enactments and regulations which were or would be included in the Ninth Schedule on or after April 24, 1973, would not receive the protection of article 31B for the plain reason that in the face of the judgment in Kesavananda Bharati , there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein The various constitutional amendments by which additions were made to the Ninth Schedule on or after April 24, 1973, would be valid only if they did not damage or destroy the basic structure of the Constitution Referring to the unamended portion of article 31C it was observe that it was not " like an uncharted sea". It gave protection to a defined and limited category of laws which were passed for giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39. These clauses of article 39 contained directive principle which was vital to the well-being of the country and the welfare of its people. Chandrachud J. said, "It is impossible to conceive that any law passed for such a purpose can at al violate article 14 or article 19. .. In fact, far from damaging the basic structure of the constitution, laws passed truly and bona fide for giving effect to directive principles contained in clauses (b) and (c) of article 39 will fortify that structure " Laws included in the Ninth schedule on or after April 24, 1973, would not receive the protection of article 31B ipso facto those laws would have to be examined individually for determining whether the constitutional amendments by which they were put in the Ninth schedule damaged or destroyed the basic structure of the constitution in any manner. Such an exercise would, however, "become otiose" if they fell within the scope ad purview of article 31A or the unamended article 31C. If those laws were saved by these articles, it would be unnecessary to determine whether they also received the protection of article 31B read with the Ninth Schedule. The fact that article 31B conferred protection on the Schedule-laws against any provisions of Part III and the other two articles conferred protection as against articles 14 and 19 only, would make no real difference since, after the deletion of article 31, the only two provisions of Part III which would generally come into play on the question of validity of laws were articles 14 and 19.

34. The Act was introduced into the Ninth Schedule after April 24, 1973. The Constitution Amendment act by which it was so introduced must be tested to determine whether it is destructive of or damaging to the Constitution's basic structure. If it is found to be so the Act does not enjoy the protection of article 31B.

35. Mr. Dhanuka, we must note, stressed the observation of Chandrachud J., that it was impossible to conceive that a law passed to further the principles of article 39(b) and (C) could offend the basic structure of the Constitution.

36. The next judgment that must be considered in Maharao Sahib Shri Bhim Singhji v. Union of India, . The Urban Land (ceiling and regulation) Act 1976, was challenged on the ground that it did not further the Directive principles of State policy contained in clauses (b) and (c) of article 39 of the Constitution Tulzapurkar J. alone took the view that the petitioner's contention was correct. Chandrachud C. J. and Bhagwati J. held the Ceiling Act to be valid except only in regard to section 27. They so stated in brief order and observe that fuller reasons would follow It appears, however, from the judgment in paragraph 4 of the judgment in Maharao Sahib Shri. Bhim Singhji v. Union of India, , that Chandrachud C. J. and Bhagwati J., then concurred with the judgment delivered by Krishna Iyer J. and felt that the need for fuller reasons was obviated. Krishna Iyer J., in the course of his judgment noted that " the question of basic structure being breached could not arise when the vires of an ordinary legislation were being examined as distinguished from the vires of a constitutional amendment. Every branch of equality did not spell disaster as a lethal violation of he basic structure. What was a betrayal of the basic feature was into a mere violation of article 4 but a shocking unconscionable or unscrupulous travesty of the quintessence of equal justice. If a legislation dos go that far, it shakes the democratic foundation and must suffer the death penalty". Without amplifying Krishna Iyer J., however, struck down the provisions of section 27 of the Ceiling Act. A. P. Sen J. also struck down section 27 of the ceiling Act and he did so because there was no justification for freezing of transactions by way of sal mortgage or lease of vacant land for the stated period even though it fell within the ceiling limits. He held that the right to acquire, hold and dispose of property guaranteed to a citizen under article 19(1)(f) carried with it the right not to hold any property.

37. The judgment in Bhim Singhji, , was relied upon by Mr. Dhanuka because of the observation of Krishna Iyer J. quoted above. It has been relied upon by Dr. L. M. Singhvi, learned counsel of the respondents because A. P. Sen J. struck down section 27 having regard to the provisions of article 19(1)(f).

38. The judgment in Maneka Gandhi v. Union of India, , must now be examined. In regards to the test to be applied it was held, following the judgment in Rustom Cavsjee Cooper's case , that what was relevant was the direct and inevitable consequence of the impugned State action on the fundamental right of the petitioner. Otherwise the protection of the fundamental rights would be subtly but surely eroded. Directness was linked to inevitability. If the effect of State action on a fundamental right was direct and inevitable, then, a fortiori, it had to be presumed to have been intended by the authority taking the action and, hence, the doctrine of direct and inevitable effect had been described by some jurists as to doctrine of intended a real effect. Bhagwati J., speaking for himself, Untwalla and Murtaza Fazal Ali JJ., observed that it was not their view that a right which was not specifically mentioned by name could never be a fundamental right within the meaning of article 19(1) It was possible that a right did not express mention in any clause of article 19(1) and yet it might be covered by some other clause of that article. Bhagwati J. took for example and by way of illustration, the freedom of the press and his observations in this behalf are of great importance. The freedom of the press, he said, was " the most cherished and valued freedom in a democracy indeed democracy cannot survive without a free press. Democracy is base essentially on free debate and open discussion for that is the only corrective of governmental action in a democratic set up. If democracy means government of the people, by the people, it is obvious that every citizen must be entitled to participate in a democratic process and in order to enable him to intelligently exercise his right of making a choice, free and general discussion of public matters is absolutely essential. Manifestly, free debate and open discussion in the most comprehensive sense is not possible unless there is a free and independent press. Indeed, the true measure of the heath and vigour of a democracy is always to be found in its press. Look at its newspapers do they reflect diversity of opinions and views, do they contain expression of dissent and criticism against governmental policies and actions or do they obsequiously sing the praise of the Government or lionize or deify the ruler. The newspapers are an index of the true character of the Government - whether it is democratic or authoritarian. It was Mr. Justice Potter Stewart who said : 'Without an informed and free press, there cannot be an enlightened people'. Thus, the freedom of the press constitutes one of the pillar of democracy and indeed lies at the foundation of democratic organisation (emphasis [Here printed in italics] supplied). The learned judge also observe that the freedom of circulation was necessarily involve in the freedom of speech and expression and was part of it and hence enjoyed the protection of article 19(1)(a).

39. Maneka Gandhi's case, , is relevant for out purposes, firstly, because it lays down the test to be applied to state action when the allegation is that it offends a fundamentally right. The same test must necessarily be applied when the allegation is that a Constitutional Amendment Act damages or impairs the basic structure of the constitution. Further, Bhagwati J., speaking for himself and two other learned judges in clearest terms, emphasised above, highlighted the importance of the freedom of the press.

40. There are two case which involve the Minerva Mills Ltd. and the first is of great importance in constitutional law. It is Minerva Mills Ltd. v. Union of India, . The challenge there was to amendments made by a constitutional Amendment Act to article 368 of the constitution by the introduction of the clauses 4 and 5 and to the amendment of article 31C whereby it was stated that no law giving effect to the policy of the State towards securing all or any of the principle laid down in Part IV of the constitution could be deemed to be void on the ground that it was inconsistent with, or took away or abridged any of the rights conferred by article 14 , 19 or article 31. It was made clear that there was no challenge to the unamended article 31C the main controversy, it was noted centered round the question whether the Directive Principle of State Policy contained in Part IV could have primacy over the fundamental rights conferred by Part III and the question was whether, in view of the majority decision in Kesavananda Bharati, , it was permissible to Parliament to so amend the constitution as to give a position of precedence to the directive principle over the fundamental rights. It was observed :

"To destroy the guarantees given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. "

41. On a reasonable interpretation of the amendment to article 31C, articles 14 and 19 stood abrogated in regard to the category of laws described in article 31C. The startling consequence was that even if a law was in total defiance of the mandate of article 13 read with articles 14 and 19, its validity would not be open to question so long as its object was to secure a directive principle of State policy. A large majority of laws could be justified as having been passed for the purpose of given effect to the policy of the State towards securing a principle laid down part IV. In respect of all such laws which would over an extensive filed the protection of articles 14 and 19 would stand wholly withdrawn. It was no answer to say while determining whether the basic structure of the constitution was altered, that at least some laws could fall out side the scope of article 31C. Articles 14 and 19 did not confer any fanciful rights, they conferred rights which were elementary for the proper and effective functioning of a democracy. The principles enunciated in Part IV were not the proclaimed monopoly of democracies alone. They were common to all politics democratic or authoritarian every State was goal-oriented and claimed to strive for securing the welfare of its people. The distinction between the different forms of government consisted in that a real democracy endeavoured to achieve its objectives through the discipline of fundamental freedoms like those conferred by articles 14 and 19. Those were the most elementary freedoms without which a free democracy was impossible and which must, therefore, be preserved at all costs. It was the majority view the amendments were not valid.

42. In the second Minerva Mills' case, , the challenge was to the provisions of an order passed under the Industrial (Development and Regulation) Act, 1951, taking over the management of the mills and the constitutional validity of the Sick Textile Undertaking (Nationalisation) Act, 1974. The two judges of the Supreme Court who heard the matter observed that constitutional amendments made after April 24, 1973, by which Acts or Regulations were included in the Ninth Schedule, could be challenged on the ground that they damaged the basic or essential features of the constitution or its basic structure. But they said if any of such Acts and Regulations was saved by article 31A or by article 31C, such challenge on the ground that the constitutional amendment damage or destroyed a basic or essential feature of the Constitution or its basic structure as reflected in article 14 or article 19 became otiose. The Nationalisation Act fell within the protective umbrella of article 31C and it could not be challenged on the ground that it violated the provisions of articles 14 and 19. The court, therefore, said that it was not called upon to adjudicate upon the contention that some of the provisions of the Nationalisation Act were violative of articles 14 and 19 of the Constitution.

43. The relevance of these judgments to the controversy before us in regard to article 31B arises because Mr. Dhanuka submitted that since section 22 of the Act fell within the scope of article 31C, it could never be said that the constitution Amendment Act by which the Act was introduced into the Ninth Schedule damaged the basic structure of the constitution. Mr. Dhanuka also pointed out that article 31C in its unamended from was not the subject-matter of the challenge in the first Minerva Mills' case, , so that the reference therein to the directive principles was to all the directive principles other than those mentioned in article 39(b) and (c), which were mentioned by article 31C in its unamended from. His conclusion was that these two directive principles enjoyed primacy over the fundamental right set out in part III.

44. We now refer to parts of the judgment in the case of Kesavananda Bharati , to show that some of the learned judges there expressed the view that the freedom of expression was an element of the basic structure of the Constitution. Shelat and Grover JJ. referred to the dignity of the individual secured by the various freedoms and basic rights in Part III of the Constitution. Hegde and Mukherjea JJ. said that Parliament had no power to abrogate or emasculate the basic elements or fundamental features of the constitution including the essential features of the individual freedoms secured to the citizens. They were unable to agree with the contention that in order to build a welfare State, it was necessary to destroy some of the human freedoms. That was not the perspective of the constitution. The Constitution envisaged that the state should without delay make available to all the citizens of this country the real benefits of those freedoms in a democratic way. Human freedoms were lost gradually and imperceptibly and their destruction was generally followed by authoritarian rule. That was what history had taught us. The struggle between liberty and power was eternal vigilance was the price that we like every other democratic society, had to pay to safeguard the democratic values enshrined in our Constitution Even the best of governments were not averse to have ore and more power to carry out their plans and programmes which they might sincerely believe to be in public interest. But a freedom once lost was hardly ever regained except by revolution. Every encroachment on freedom sets a pattern for further encroachments. Our constitutional plan was to eradicate poverty without destruction of individual freedoms A. N. Ray J. also took the view that the fundamental rights contained in Part III of the Constitution were apart of the basic structure thereof.

45. There is no exhaustive list of the elements that constitute the basic structure of a Constitution and which, therefore, are unamendable. The judgments of the Supreme Court to which we have made reference have evaluate the fundamental right of the freedom of the press in terms which leave no doubt that it is an inherent part of the basic constitutional structure and indispensable to the democratic form of Government that it provides. The judgment in Kesavananda Bharati, , mentioned above, makes this still clearer Accordingly, we hold that the freedom of the press is a part of the basic structure of the constitution.

46. This brings us to consider the effect of section 22 of the Act. We have already quoted it Clause (1) places, in the first instance an embargo upon any person or authority other than Government establishing any new undertaking which would become an interconnected undertaking of an undertaking to which by reason of section 20 part A of chapter III applies Part A applies to inter alia, an undertaking whose own assets or whose own assets together with the assets of interconnected under takings were not less than Rs. 20 crores. Part A, therefore, applies to the company. Under the provisions of sub-section (1) of section 22, such new undertaking can be established only under and in accordance with the previous permission of the Central Government. The application in this behalf is, by reason of sub-section (1), to be made in the prescribed form and information in regard to the interconnection of the new undertaking with every other undertaking and the scheme of finance for the establishment of the new undertaking are required to be set out as also such other information as may be prescribed. By virtue of clause (a) of sub-section (3) the central government can call upon the applicant for permission to satisfy it that the proposal to establish the new undertaking or the scheme of finance with regard to such proposal is not likely to lead to the concentration of economic power to the common detriment or is not likely to be prejudicial to the public interest in any other manner. Thereafter, the Central Government may, if it is satisfied that it is expedient in the public interest so to do, accord approval. If the central government is of the opinion that on approval can be given without further inquiry it may refer the matter to the Commission established under the Act or enquiry the commission is obliged to report the result of the enquiry to the central government and the Central Government must pass an order thereon The scheme of finance on the strength of which approval has been obtained may not be modified except with the previous approval of the Central Government.

47. Sub-section (1) of section 2 was substituted and sub-section (1A) added thereto by Act 30 of 1984. The amended sub-section (1) need not detain us, but the effect of sub-section (1A) is of relevance. An undertaking to which Part A applies cannot by reason thereof obtain permission from the Central government in respect of any article which it already produces, stores, supplies, distributes, markets or controls or in respect of any service of the nature that it already provides.

48. Applying section 22 to the present facts, the company cannot through Jansevak, publish any newspaper in Lucknow until it has secured the central Government's permission. Such permission would be given if the Central Government was satisfied, having regard only to economic considerations, that it was expedient in the public interest to do so. Needless to say, that applies to Jansevak an Lucknow applies equally to any other undertaking or part of the country. Under the revisions of subsection (1A) of section 22, the company can of course, never secure such permission.

49. The provisions of the unamended section 22, which are sough to be applied to the company as they read, constitute a prior restraint on circulation an are in breath of the freedom of the press.

50. Mr. Dhanuka submitted that the Act was passed to further the object of article 39(c) of the constitution. He referred in this behalf to the preamble and the scheme of the Act. Section 22, he submitted, applied to all industries and not only to the press. It applied to the press because the press provided a service under the terms of section 2(r). All under takings to which Part A of Chapter III applied had to comply with the requirements of section 22. The Act was general regulatory measure to control exclusivity or monopolies in business. It might incidentally affect an undertaking that owned a newspaper but it was not aimed at the press. It had no direct or proximate effect on the press.

51. Section 22, as it stood, precluded what we may call monopoly press undertaking like the company from setting up a new newspaper under taking unless it had obtained pervious permission. The pervious permission had to be obtained from the Central Government of the day. The application for permission was to be considered by the Government on criteria which were irrelevant to the freedom of the press though relevant to the object of the Act in granting permission government could impose conditions whose nature was not specified. As it now reads, monopoly press undertaking just cannot set up a new newspaper undertaking section 22, as it read and reads therefore, imposes a prior restraint on the circulation of newspapers. It has a direct, proximate and certain adverse effect, not an incidental probable effect, on the freedom of the press, Laudable though the object of section 22 is in economic terms, it is sought to be achieved by impermissible means, so far as monopoly press undertaking are concerned of transgressing the freedom of the press which is both a fundamental right and an element of the basic structure of the constitution.

52. Mr. Dhanuka submitted that, at worst, there was a minor abridgment of the freedom of the press and no destruction or damage to the constitution's basic structure. There was no "shocking unconscionable or unscrupulous travesty of the quintessence" of a fundamental right.

53. It is difficult to hold that the freedom of the press is merely abridged by section 22 and that there is no damage or impairment to the basic structure of the Constitution. As has been repeatedly pointed out by the Supreme court, freedom of circulation is as much a part of the freedom of the press as the freedom to propagate news and views. Section 22 imposes a restraint on circulation. As has also been pointed out by the Supreme court the freedom of the press is as much the freedom of the citizen to read the journal of his choice From the point of view as much of the publisher as of the citizen, it is irrelevant to the concept of the freedom of the press that the publisher is a monopoly undertaking. In the wider interests of the active functioning of our democracy, the citizen has a right to inform himself of news and views and the right cannot be denied to him on considerations extraneous thereto. The concept of the freedom of the press necessarily means that a journal's circulation should be free to grow to meet the demand for it. Interference with the circulation of the journal is, interference with the quintessence of the freedom of the press and it damages and impairs the basic structure of the constitution.

54. There is another factor to which Dr. Singhvi adverted, and rightly, in the context of the extent of the effect of section 22. The monetary limit thereunder can rise or fall depending upon the outlook of the party in power. It has presently been raised from Rs. 20 crores to Rs. 100 crores but it could be brought down tomorrow to a smaller figure. Were this to happen more undertakings, including the press undertakings, could become monopoly undertakings to which the provisions of section 22 would become applicable, its constitutionality cannot, therefore, be judged on the basis that, as things stand today, it will operate only in regard to one monopoly press undertaking.

55. It was submitted by Mr. Dhanuka that section 22 was merely regulatory. It is regulatory of the business of the press, such regulation, however, cannot transgress the freedom of the press.

56. It was pointed out by Mr. Dhanuka that the Act was intended to further the directive principle that the operation of the economic system should not result in the concentration of wealth and means of production to the common detriment (article 39 (c)). This is not a proposition which can be disputed. Mr. Dhanuka submitted that this directive principle is a part of the Constitution's basic structure and that, assuming the freedom of the press also to be a part of the basic structure, there should be a balancing of the conflicting interests. There can be no doubt that distributory justice is one main plank of the Constitution and most desirable thing, but so is the right of the citizen to inform himself of news and views in a manner of his own choice so that he may best exercise his franchise. There can therefore, be no balancing or sacrifice of the one for the other. In so holding, we echo the sentiments of the Supreme Court in the judgments we have cited.

57. Mr. Dhanuka stressed the observations in the judgment in Waman Rao's case, , that it was impossible to conceive that any law passed for the purpose of giving effect to clause (c) of basic structure of the Constitution, laws truly and bona fide passed for giving effect to these directive principles would fortify that structure. The observations, with respect, are not a conclusion in regard to anything upon which the court was ruling. They are, in that sense, not obiter dicta. They really are reflections about enactments of the future. The observation are not many to preclude the courts from holding, in an appropriate case, that a law passed to give effect to the directive principles in clauses (b) and (c) of article 39 or any provision thereof impairs the basic structure of the Constitution. We have no doubt that the Act has truly and bona fide been enacted to achieve the objective of article 39(c) and that, as a whole, it fortifies the basic structure of the Constitution; but that does not mean that we must overlook the fact that section 22 therein as applicable to a monopoly undertaking offends the freedom of the press, which is also a part of the basic structure. It is not possible on the basis of these observations to throw out the challenge to the Constitution Amendment Act that introduced the Act into the Ninth Schedule.

58. Mr. Govilkar, learned counsel for the All India Newspaper's Association (which had intervened before the learned single judge and which is the third respondent to this appeal), argued that small newspaper needed protection against larger newspapers and monopoly press undertakings. We will assume, to use the Supreme Court's phrase, that monopolies are always obnoxious and that small newspaper require protection but the objectives of controlling monopolies and protecting small newspapers must be reached by means that do not trample upon the essential constitutional freedoms. Given the role that it must play in a democratic society, the press must sometimes be in opposition to stand up to the Government's functioning and informed views thereabout. Realistically speaking, it must be recognised that small and, therefore, financially weak newspaper would not be in a position to offend the Government of the day for long and the more upright among them might be forced to close down. The larger and financially stabler newspapers must be recognised as having an important part to pay.

59. The impatience to achieve social and distributory justice is very understandable, but Governments are composed of mortal men who do not last for ever, and they cannot vouchsafe the good intentions of those who will succeed them. The security of the citizens of this land, therefore, lies in what the formers of the Constitution held to be immutable. They held an elected form of Government to be immutable. An elected form of Government requires an informed electorate. The electorate secures the bulk of relevant information from the press. The freer the press, the greater the likelihood of a democracy in the true sense of the word, a Government of the people.

60. In conclusion, upon this aspect, we hold that the Constitution (39th Amendment) Act which introduced the Act into the Ninth Schedule is bad to the extent that it brought the provisions of section 22 of the Act to bear upon press undertaking because, in doing so, it impinged upon the freedom of the press and, consequently, impaired the basic structure of the Constitution. The protection of article 31B is, therefore, not available to section 22 of the Act.

61. We shall consider whether the protection of article 31C is available to section 22 of the Act. The Act is of 1969. Article 31C was inserted by the Constitution (25th Amendment) Act with effect from April 20, 1972. The Act, is, therefore, a pre-article 31C enactment.

62. The Supreme Court was concerned with article 31C in Excel Wear v. Union of India, . It held that enactments, though placed on the statue book for the purpose of achieving the principles specified in clause (b) or (c) of article 39, were not entitled to the protection given by article 31C unless they had been enacted after article 31C was introduced into the Constitution. The Legislature, it was reasoned, could not have thought of enacting a law within the meaning of article 31C at a time when it had not been so introduced. A law which was bad at the time when it was enacted would not be saved because article 31C had thereafter been brought on the statute book. Article 31C only applied to laws for the aforementioned purposes enacted subsequent to the placing of article 31C in the Constitution. Applying the judgment in Excel Wear's case, , it must be held that the protection of article 31C is not available to the Act which is a pre-article 31C enactment.

63. Mr. Dhanuka drew our attention to the judgment of a Division Bench of this court to which one of us (Sugla J.) was a party, Rahuri Sahakari Sakhar Karkhana Ltd. v. State of Maharashtra. . The challenge was directed to an order called the Maharashtra Sugar Factories (Reservation of Areas and Regulation of Crushing and Sugarcane Supply) Order, 1984, on the ground that it violated the petitioner's fundamental rights under articles 14 and 19 of the Constitution. The respondents contended that the order was covered by the provisions of article 39(b) of the Constitution and, therefore, enjoyed the protective umbrella of article 31C. Counsel for the petitioner submitted that article 31C was not retrospective in nature and, therefore, the Essential Commodities Act under which the order had been issued was not covered by article 31C. The Division Bench came to the conclusion that the order was covered by article 39(b) and, since it had been issued post article 31C, was covered by the protective umbrella of article 31C. Having regard to an observation in Waman Rao's case, , the Division Bench held that the word "deemed" used in article 31C indicated that it covered both past and future enactments.

64. It will be seen that the controversy before the Division Bench was in relation to the order which was post-article 31C. Being issued in furtherance of the objectives of article 39(b), it enjoyed the protection of article 31C. In any event, the judgment of the Supreme Court in Excel Wear's case, , which held that article 31C was only prospective, was not cited before the Division Bench.

65. Mr. Dhanuka pointed out that section 22 had been amended post-article 31C and, in his submission, those amended portions, being enacted for achieving the objectives of article 39(b), were entitled to the protection of article 31C. In the first place, we are not directly concerned with those amendments because they were effected after the first editions of "The Times of India" and "Nav Bharat Times" had been issued in Lucknow and notices in this regard had been served upon the company. In the second place, the amendments cannot stand as of themselves and must necessarily by read with the unamended portions of section 22. It is, therefore, not possible to uphold this submission.

66. The writ petition impugned all the provisions of the Act. Before the learned single judge the challenge was restricted to sections 21 and 22 thereof and he upheld that challenge. We find that it is only section 22 which is applicable to the facts of this case. Since we are considering the issue of constitutional validity, we consider it appropriate to confine the relief we give to section 22.

67. We have held that the freedom of the press is a fundamental right guaranteed by article 19(1)(a), that it is also a part of the basic structure of the Constitution, that section 22 damages or impairs the basic structure of the Constitution in that it impinges on the freedom of the press, that section 22 does not, therefore, enjoy the protective umbrella of article 31B and that it also does not enjoy the protective umbrella of article 31C.

68. In the circumstances and in order to preserve the constitutionality of section 22 so far as we may, we must read down section 22 so that it will not be applicable when undertakings covered by Part A of Chapter III of the Act propose to establish new interconnected undertakings to print and/or publish newspapers or similar journals. The appeal is dismissed.

69. There shall be no order as to costs.

70. An oral application is made for a certificate for appeal to the Supreme Court. A substantial question of law relating to the interpretation of the constitution is here raised. The question is indicated in the order. A certificate of fitness to appeal to the Supreme Court shall issue.

71. On the application of counsel for the appellants, the interim order passed in the appeal on July 25, 1986, shall continue for period of eight weeks from today.

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