Sakal Papers (P) Ltd., And Others vs The Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 25 September 1961

Coram: J.R. Mudholkar, Bhuvneshwar P. Sinha, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar

In this matter, the Supreme Court of India heard an application filed by Sakal Papers (P) Ltd. and other petitioners against the Union of India. The petition was filed on 25 September 1961 and was decided by a Bench comprising Justice J. R. Mudholkar, Justice Bhuvneshwar P. Sinha, Justice A. K. Sarkar, Justice K. C. Das Gupta and Justice N. Rajagopala Ayyangar. The decision is reported in the 1962 All India Reporter at page 305 and in the Supreme Court Reports, third series, at page 842. Several subsequent citations of this judgment appear in later reports, including the 1967, 1973, 1974, 1978, 1980, 1986, 1988 and later law reports, reflecting its continuing relevance.

The instant case concerned the Constitutionality of the Newspaper (Price and Page) Act, 1956 (Act 45 of 1956) and the Daily Newspapers (Price and Page) Order, 1960 made thereunder. The Act authorized the Central Government to regulate the price of newspapers in relation to the number of pages and to control the allocation of space for advertisements. Under the Act, the Order fixed the maximum number of pages that a newspaper could publish for a given price and prescribed the number of supplements that might be issued. The petitioners challenged both the Act and the Order on the ground that they infringed the fundamental right guaranteed by Article 19(1)(a) of the Constitution, which secures freedom of speech and expression, including the freedom of the press. The Court examined whether the restrictions imposed by the legislation were permissible under Article 19(2). It held that the Act and the Order were void because they violated Article 19(1)(a) and were not saved by the reasonable‑restriction provision of Article 19(2). The Court emphasized that the freedom of speech and expression encompasses not only the content of a publication but also the right to determine the volume of circulation. By limiting the number of pages that could be printed for a given price, the legislation directly curtailed the press’s ability to disseminate ideas, thereby interfering with the protected liberty. The Court further observed that Article 19(2) does not allow the State to abridge this right for the purpose of regulating the commercial aspects of newspaper operations. The judgment cited earlier decisions such as Brij Bhushan v. State of Delhi, Express Newspapers (P) Ltd. v. Union of India, Ramesh Thappar v. State of Madras, State of Madras v. V. G. Row, Dwarkadas Shrinivas v. The Sholapur & Weaving Co., Ltd., Virendra v. State of Punjab and Hamdard Dawakhana (Waqf) v. Union of India, to support its reasoning.

In these three petitions filed under article 32 of the Constitution for enforcement of fundamental rights, the Court examined the constitutionality of the Newspaper Price and Page Act of 1956 and the Daily Newspaper Price and Page Order of 1960. The first petition was presented by a private limited company that published daily and weekly Marathi newspapers under the name “Sakal” in Poona, together with the two individuals who were the sole shareholders of that company. The second and third petitions were filed by two readers of “Sakal”, who likewise challenged the validity of the Act. Various parties were permitted to intervene in support of the Union of India, the respondent, seeking to uphold the Act and the Order. Because the arguments raised were common to all petitions, the Court chose to address the first petition in full. Counsel for the petitioners, namely G. S. Pathak, R. Ganapathy Iyer, S. S. Shukla and G. Gopalakrishnan, were assisted by counsel for the respondent, identified as M. C. Setalvad, Attorney‑General of India, B. Sen, R. H. Dhebar and T. M. Sen. Additional counsel represented respondent No. 1, interveners No. 2 and No. 6, interveners No. 3, No. 4, No. 5 and the petitioners in petitions numbered 67 and 68 of 1961. The judgment was delivered on 25 September 1961 by Justice Mudholkar. The Court noted that the matter concerned the far‑reaching issue of press freedom, as the legislation regulated both the price and the number of pages of newspapers. The newspaper “Sakal” had been established in 1932 and reportedly achieved a net circulation of fifty‑two thousand copies on weekdays and fifty‑six thousand copies on Sundays within Maharashtra and Karnataka, thereby playing a leading role in disseminating news, shaping public opinion and addressing matters of public interest. Its daily edition comprised six pages from Monday to Friday and four pages on one day, priced at seven paise, while the Sunday edition contained ten pages and was priced at twelve paise. Approximately forty percent of the newspaper’s space was occupied by advertisements, with the remaining portion devoted to news, articles, features, and editorial views, a composition that the petitioners asserted demonstrated the newspaper’s significant contribution to public discourse.

It was submitted on behalf of the petitioners that one of the distinguishing characteristics of the newspaper in this case is its extensive coverage of foreign news and dispatches concerning international affairs. The petitioners further asserted that the newspaper does not maintain any affiliation with any political party and that, when controversial issues arise, the general public turns to the paper for an unbiased assessment of the matters and for guidance on how to understand them.

The petitioners summarized the operative effect of the impugned statute and the accompanying order as follows: the law seeks to regulate the number of pages that a newspaper may publish in relation to the price that is charged to readers; it prescribes the number of supplements that may be issued; and it prohibits the publication and sale of any newspaper that contravenes an order made under section three of the Act. In addition, the Act empowers the government, by an order made under the same section, to regulate the size and the area occupied by advertising material as compared with the space allotted to other content in the newspaper. The legislation also provides for penalties to be imposed on any person who violates any provision of the Act or the order made thereunder. The petitioners directed the Court’s attention to the fact that, in 1952, the Government of India constituted a Press Commission to investigate a wide range of matters relating to the press. One of the recommendations of that Commission was that a law of the kind now before the Court should be enacted. The respondent has alleged that the present Act was enacted in order to give effect to that recommendation. Both parties, however, rely on the factual findings of the Press Commission and ask the Court to accept those findings, even though they do not necessarily accept every recommendation that emerged from the Commission’s report.

The petitioners thereafter pointed out that the newspaper “Sakal” presently provides a total of thirty‑four pages to its readers on each of the six days in a week. They argued that, as a consequence of the impugned order, the newspaper would be compelled either to raise its selling price from seven nanas per copy to eight nanas per copy, or to cut down the total number of pages to twenty‑four. They further observed that, at present, every newspaper is free to publish any number of supplements whenever it wishes, but the order would restrict that freedom by allowing supplements to be issued only with the prior permission of the Government. According to the petitioners, the order would therefore force newspapers across the country either to increase their price or to reduce the number of pages, and it would also prevent them from publishing supplements without the imposition of additional restrictions that do not exist today. The petitioners contended that the Act and the order are legislative measures designed to curtail the freedom of the press and, consequently, they violate the right guaranteed under Article 19(1)(a) of the Constitution. They emphasized that if they attempted to maintain the present number of pages, they would have to increase the price, which would adversely affect circulation, whereas if they chose to reduce the number of pages in order to comply with the order, their fundamental right to disseminate news and views would be directly interfered with.

The petitioners argued that any requirement to raise the price of their newspapers or to reduce the number of pages would directly interfere with the liberty guaranteed to them by Article 19 (1)(a) of the Constitution. They maintained that the impugned Order gave the Central Government the exclusive power to permit the issue of supplements, except on the national holidays of January 26 and August 15, and that this power would leave the newspapers at the mercy of the Government, thereby infringing their freedom of expression. In addition, the petitioners contended that both the Act and the Order violated Article 14 because their stated purpose was to arbitrarily favour the interests of certain newspapers while disadvancing others. They pointed out that the provisions of the Act and the Order displayed conspicuous inequality, lacking any reasonable classification, sensible basis, or rational connection between the imposed restrictions and the objectives purportedly sought to be achieved. According to the petitioners, established newspapers would be scarcely affected by these provisions, whereas newspapers striving to establish themselves would encounter significant obstacles to their growth and development.

The Union of India, represented by the Ministry of Information and Broadcasting, conceded that the purpose of the Act was to regulate the price charged for newspapers in relation to the number of pages, but asserted that this regulation was intended to prevent unfair competition and the formation of monopolistic combines, thereby ensuring that newspapers could enjoy fair opportunities for broader discussion. The respondent explained that the effect of the Act was to prescribe the maximum amount of matter a newspaper could make available to the public at a given price, and that this limitation did not in any way restrict the petitioners’ right to disseminate their ideas. While acknowledging that the Order placed a limit on the space a newspaper could devote to news and ideas, the respondent argued that newspapers could overcome this limitation simply by raising their price, and that such a price increase would not adversely affect circulation. Even if circulation were to decline, the respondent maintained that the fundamental rights protected by Article 19 (1)(a) would not be infringed. Moreover, the respondent submitted that the legislation did not directly or indirectly concern the subject of freedom of speech and expression, and therefore no question of violation of Article 19 (1)(a) arose. According to the respondent, the overall effect of the Act and the Order was to promote the general right of newspapers to exercise freedom of speech and expression, and that neither the intention nor the operation of the law was to curtail or abridge the petitioners’ constitutional freedoms.

The respondent argued that the impugned legislation does not intend to take away or abridge the freedom of speech and expression of the petitioners. It was further observed that every newspaper carries advertisements, which constitutes a trading activity distinct from the expressive activity protected by Article 19(1)(a). Accordingly, the respondent maintained that the Act and the Order are designed to impose restrictions on the commercial side of newspaper operations in the public interest. The respondent pointed out that the proportion of newspaper space devoted to advertisements ranges between forty‑six per cent and fifty‑nine per cent, and that such advertising revenue enables newspapers to be sold at a price below the cost of production. Relying on the Report of the Press Commission, the respondent contended that long‑established newspapers with large, stable advertising revenues enjoy an economic advantage over newcomers, allowing them to marginalise new entrants and thereby threaten the freedom of expression of others. The respondent emphasized that a free press cannot consist of a few powerful conglomerates and that safeguarding press freedom requires providing ample opportunity for the development of smaller newspapers. It was also submitted that any reduction in advertising revenue arising from the operation of the Price Page Schedule cannot be characterised as an infringement of the right guaranteed by Article 19(1)(a). The respondent explained that the Press Commission had examined the economies of newspapers and determined the maximum number of pages a paper could publish while preserving a reasonable margin for advertisement space, and that the Commission had subsequently suggested a tentative Price Page Schedule. In preparing that schedule, the Commission considered factors such as the cost of newsprint, composing and printing, distribution, commissions payable, editorial and managerial expenses, and general overhead charges. The present Price Page Schedule, the respondent stated, is based on the schedule formulated by the Press Commission. Moreover, the respondent asserted that the current measures were adopted following the Commission’s recommendation that, because a functioning democracy requires every individual to have an equal opportunity to express opinions, steps should be taken to reduce disparities caused by economic advantages, thereby giving newcomers a fair chance of success. With that objective, the respondent said, the present rates were prescribed. Finally, the respondent observed that the majority of Indian‑language newspapers priced at seven paise will encounter no difficulty in complying with the order, as they typically publish five or fewer pages on weekdays, and that only a small number of newspapers would be remotely affected by the new requirements.

In the respondent’s view, the reason some newspapers publish a large number of pages is not related to the exercise of the freedom of speech and expression but stems from business considerations. The respondent explained that newspapers can afford to produce more pages because they generate substantial advertising revenue or because they are part of a newspaper group or chain that does not rely solely on the income of each individual paper. It was further asserted that the petitioners, in particular, are capable of offering additional pages since they allocate a greater portion of their space to advertisements than other newspapers, and this practice is not undertaken as a lawful exercise of the right to free speech or the right to disseminate news and views. Nevertheless, the respondent also admitted that a newspaper is often sold at a price below its cost of production. From this admission, the respondent concluded that increasing advertising revenue is the only way a newspaper can raise the number of its pages. According to the respondent, the genuine objective of the legislation that is being challenged is to prevent unfair competition that has deprived other publishers of the opportunity to propagate ideas through their newspapers; consequently, the legislation does not violate a newspaper’s freedom of expression but rather seeks to promote healthy journalism. The respondent maintained that the impugned provisions would affect only those categories of newspapers that engage in unfair competition with smaller publications, a form of competition that the Press Commission described as unhealthy and contrary to the interests of healthy journalism in a developing democracy. It was therefore argued that, to avoid unfair competition and to foster healthy competition, newspapers must be placed on an equal footing, a goal that can be achieved only by directly limiting the publication of a large number of pages in relation to the price charged. The respondent further contended that the legislation aims to prevent concentration of ownership while preserving healthy competition among equally situated entities. It was also pointed out that the statute was enacted on the recommendation of the Press Commission and that the Price Page Schedule itself originated in response to a demand made by the Indian Language Newspapers Association. According to the respondent, the amount of newsprint imported is based on the average number of pages printed by newspapers in 1957, and consequently no newspaper possesses an unrestricted right to increase its page count beyond the 1957 average. Finally, the respondent noted that the draft Price Page Schedule had been approved by the Indian Language Newspapers Association, which has subsequently recommended that the life of the Price Page Act and Order be extended by an additional five years.

It was submitted that the provisions of the Act did not violate the guarantee of equality before the law contained in Article 14 of the Constitution. The Court had previously made a brief observation on the operation of the contested Act and the Order issued under it. To evaluate the arguments raised, the Court found it necessary to set out a concise overview of the statutory scheme and the specific Order that was being challenged. The Act opens with a pre‑amble stating that its purpose is to give newspapers greater freedom of expression by eliminating unfair competition. The legislature intended to achieve this aim by controlling the prices that newspapers may charge in relation to the number of pages they publish, thereby seeking to prevent unfair rivalry among newspapers. Sub‑section 3 of section 1 provides that the Act would cease to operate five years after it commenced, except with respect to actions taken or omitted before the expiry. The Act became law on 7 September 1956, so its original expiry date was 6 September 1961. The Attorney‑General informed the Court that an extension of the Act’s duration for a further five years had been proposed and that, in fact, the legislation had subsequently been prolonged for an indefinite period.

Section 2 of the Act supplies the definitions of “daily newspaper” and “newspaper.” Section 3 is the central provision, granting the Central Government authority to regulate newspaper prices and page counts. Sub‑section (1) authorises the Government to fix prices according to the number of pages and size of a newspaper whenever it deems such regulation necessary to prevent unfair competition, especially among newspapers printed in Indian languages, and also to control the amount of space allocated for advertisements. Sub‑section (2) empowers the Government to issue an Order under sub‑section (1) that may apply to newspapers generally, to any particular class of newspapers, or to different categories such as daily versus non‑daily publications. Sub‑section (3) requires the Government, while drafting the Order, to allow reasonable flexibility concerning the flow of news, the availability of advertisements, and other matters essential to the ordinary functioning of newspapers. Sub‑section (4) imposes a duty on the Government to consult with publishers’ associations and with individual publishers who are likely to be affected by the proposed measures, as it deems appropriate. Section 4 makes it unlawful to publish or sell newspapers within the territory covered by the Act in violation of any Order made under section 3. Section 5 obliges newspapers to submit returns as prescribed, thereby ensuring compliance with the regulatory framework.

The Act provides that penalties are imposed under Section 6 for the publication and sale of newspapers that violate the provisions of Section 4, as set out in sub‑section (1) of that section. Sub‑section (2) of Section 6 also contains penal provisions for other offences, but these are not relevant to the present discussion. Section 7, which is the final provision of the Act, states that a court may not take cognizance of any offence under the Act unless it receives a written complaint from the Press Registrar or from an officer duly authorised by the Registrar. Consequently, the Act can be put into practical effect only after the Central Government has exercised the power conferred by sub‑section (1) of Section 3 and has issued an order that regulates the matters referred to in that section. In exercise of those powers, the Central Government, after consulting the Association of Newspapers and Publishers likely to be affected, issued the Daily Newspapers (Price and Page) Order, 1960 on 24 October 1960. That Order became effective on 12 December 1960. The Order incorporates a schedule to the Act divided into two parts: Part I, which applies to daily newspapers published six days a week, and Part II, which applies to weekly publications. Paragraph 3 of the Order stipulates that where the price charged for a daily newspaper matches any of the prices listed in column I of Part I of the Schedule, the aggregate number of pages of all issues of that newspaper published during a six‑day week must not exceed the maximum number of pages specified opposite that price in the same part. Paragraph 4 addresses the weekly edition of daily newspapers. Paragraph 5 provides that the total number of pages of all issues of a daily newspaper must not exceed the maximum allotted under paragraphs 3 and 4, or under paragraph 3 alone, depending on whether the newspaper is published seven days a week or six days a week. The proviso to paragraph 5 adds that when a newspaper has a weekly edition referred to in clause (b) and the price of that edition differs from the price on other days, the total number of pages published in a week may not exceed the maximum assigned under paragraph 4 together with five‑sixths of the maximum assigned under paragraph 3. Paragraph 6 authorises the publication of up to six additional pages during the week. Paragraph 7 allows the issue of supplements on 26 January and 15 August each year and also permits a supplement once in every quarter on any special occasion that the publisher deems appropriate. Paragraph 8 empowers the Central Government to sanction the publication of extra supplements or special editions beyond those mentioned in paragraph 7 and sets out the number of pages that may be published in such cases. Paragraph 9 relaxes to a certain

In this case, the Court observed that the provisions contained in paragraphs four to six of the Order were intended to relax the strictness of earlier rules. Specifically, the Order stipulated that a daily newspaper would only be held to have violated the Order if, over any twelve‑week period, the total number of pages printed in all its issues exceeded the quota assigned for that interval. A simple reading of the Act together with the Order made it clear that the entitlement of a newspaper to publish news and opinions and to use as many pages as it wishes is conditioned upon the price it charges its readers. Before the Order was issued, each newspaper could set any price it desired and, consequently, enjoyed an unfettered right, free from State regulation, to disseminate news and views. The Court noted that the Order interfered with this liberty by linking the maximum permissible number of pages to the price charged.

The Court then questioned whether such interference constituted an infringement of the newspaper’s freedom of expression. Although the Constitution does not expressly mention a freedom of the press, the Court has previously held that this freedom is encompassed within the “freedom of speech and expression” guaranteed by clause (1)(a) of Article 19, as indicated in Brij Bhushan v. The State of Delhi (1). The Court emphasized that this freedom is not absolute because clause (2) of Article 19 allows reasonable restrictions in certain circumstances. The text of that clause was quoted: “Nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub‑clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”[1950] S.C.R. 605. 610. The Court observed that the State had not asserted that either the Act or the Order could be justified under any of the grounds listed in this clause.

Furthermore, the Court explained that the right to propagate one’s ideas is inherent in the concept of freedom of speech and expression. Every citizen, for the purpose of disseminating his ideas, has a right to publish, distribute, and circulate those ideas, whether by oral means or in writing. This right, subject to any law valid under Article 19(2), extends not only to the content that may be circulated but also to the volume of that circulation. In other words, a citizen may convey his views to any class and any number of readers, subject only to permissible limitations imposed by a law under Article 19(2). The Court concluded that the impugned Order indeed sought to place a restraint on this aspect of the right by prescribing a price‑page schedule.

The Court observed that the regulation seeks to limit the second facet of the freedom of speech by imposing a price‑page schedule. It noted that fixing a minimum price for a given number of pages is not intended to secure a reasonable price for newspaper buyers; rather, it is clearly aimed at reducing the circulation of certain newspapers by making the price so high that a segment of readers will be discouraged from purchasing them. The Court further stated that it is not disputed that each newspaper formulates its own operational plan. In devising this plan, a newspaper takes into account numerous factors, including the place of publication, the class of readership it expects to attract, labour conditions, the cost of raw material, the availability of advertising, and similar considerations. Based on these factors, the newspaper decides its size, the proportion of different types of content such as news, commentary, reader views, advertisements, and the price to be charged. The Court emphasized that the plan thus evolved is being violently disturbed, if not completely upset, by an order that the Central Government may issue under section 3(1) with the purpose of curtailing newspaper circulation. While section 3(4) obliges the Government to consult publishing associations, the Court pointed out that the Government is not bound by the views expressed by those associations. Moreover, the mere fact that consultation is mandatory does not remove the character of the Government’s action as a direct interference with a citizen’s freedom of speech and expression.

After the schedule becomes effective, a newspaper proprietor will not be permitted to charge less than the stipulated minimum price if he wishes to publish a specified number of pages. Violation of this provision will attract a penalty. In the same manner, a proprietor cannot publish more than four supplements at will; doing so requires prior permission from the Government. The order, however, does not specify the circumstances under which a newspaper may obtain such special permission, leaving the decision to the “sweet will and pleasure” of the Government. The Court held that this discretionary power strikes at the very core of press independence. Citing Express Newspapers (Private) Ltd. v. Union of India, the Court reiterated that although the press is not immune from general laws, it is impermissible to subject the press to statutes that remove or abridge freedom of speech and expression, or to adopt measures designed to curtail circulation, narrow the dissemination of information, restrict the press’s choice of means to exercise its right, or undermine its independence by forcing it to seek Government aid. This reasoning formed the basis of the Court’s conclusion.

The Court observed that a statute imposing excessive and prohibitive burdens on the press, which would restrict the circulation of a newspaper, could not be justified by invoking Article 19(2) of the Constitution. It emphasized that the Constitution should be interpreted broadly rather than narrowly or pedantically. Because certain rights are entrenched in the Constitution as fundamental, the Court held that it must not construe the constitutional language in an overly literal manner that would diminish those rights. At the same time, the Court recognized that interpretation must enable citizens to enjoy the guaranteed rights to the fullest extent, subject only to permissible restrictions. Applying this principle, the Court explained that the right to freedom of speech and expression inherently includes the right to publish and disseminate one’s ideas, opinions and views by any available means of publication, subject to any legitimate restrictions that may be imposed under clause (2) of Article 19. The Court identified the decision in Romesh Thapar v. State of Madras as the first instance in which it recognized that freedom of speech and expression encompasses the freedom to propagate ideas, and that this freedom is ensured through the freedom of circulation. In that case, the Court also affirmed that freedom of speech and expression forms the foundation of all democratic institutions and is essential for the proper functioning of democratic processes. The Court further noted that the legislature has been constrained by very narrow and stringent limits on permissible abridgment of the right of freedom of speech and expression. In State of Madras v. V. G. Row the Court examined the reasonableness of restrictions that may be placed upon a fundamental right, stating that factors such as the nature of the right alleged to be infringed, the purpose underlying the restriction, the scope of the evil sought to be remedied, the disproportionality of the imposition, and the prevailing conditions at the time must all influence the judicial assessment. In Dwarkadas Shrinivas v. The Sholapur Spinning & Weaving Co., Ltd. the Court observed that when construing the Constitution, the substance and practical effect of a State action should be considered rather than merely its formal legal aspect. The appropriate approach, the Court explained, is to determine the actual loss or injury suffered by the citizen, rather than focusing solely on the manner or method employed by the State in imposing the restriction. In Virendra v. The State of Punjab the Court reiterated these principles, stressing that any restriction on the press must be examined in light of its real impact on the fundamental right of free speech and expression.

The Court noted, with reference to page 319 of the earlier decision, that preventing a newspaper from publishing its own views or the views of its correspondents on matters that may constitute the “burning topic of the day” constituted a serious encroachment on the valuable and cherished right of freedom of speech and expression. The order that was being challenged required every newspaper that wished to retain the same number of pages to increase its selling price. The effect of raising the selling price of newspapers had been examined by the Press Commission. In paragraph 164 of the Commission’s Report it was observed that the selling price of a newspaper naturally affected its circulation. The Report recorded that it had investigated the impact of price reductions introduced by two English‑language newspapers in Bombay on their own circulations as well as on the circulation of the leading newspaper that had not reduced its price. Prior to 27 October 1952, the Times of India, which enjoyed the highest circulation in Bombay, was being sold at Rs 0‑2‑6. The Free Press Journal and the National Standard, which were next in rank, were sold for Rs 0‑2‑0. On 27 October 1952 the Free Press Journal reduced its price to Rs 0‑1‑0 and, within a year, claimed that its circulation had doubled. On 1 July 1953 the National Standard was converted into a Bombay edition of the Indian Express and was sold for Rs 0‑1‑6; within six months it also claimed a doubling of its circulation. During the same period the Times of India, which had not altered its price, continued to retain its readership. The Commission concluded that the Free Press Journal and the Indian Express, by lowering their prices, were able to attract a segment of the market that had previously been unable to afford the higher prices.

Paragraph 165 of the same Report provided another illustration of the effect of selling price on newspaper circulation. It described the experience of two leading Tamil‑language papers, Swadesamitran and Dinamani, in Madras. Anticipating a steep increase in the cost of newsprint toward the end of 1950, the two papers agreed to raise their price from Rs 0‑1‑0 to Rs 0‑1‑6 per copy, a change that took effect on 1 January 1951. Both papers normally published between thirty and thirty‑six pages per week. The price increase resulted in a drastic fall in circulation for both publications. In response to the decline, the papers later agreed to revert to the earlier lower price. While one of the papers recovered its former circulation after more than nine months, the other had not yet regained its previous level of readership. The Report also noted that the circulation of a competing newspaper, Thanthi, did not increase during the three months when the two leading papers had raised their prices, nor did it fall when the prices were subsequently reduced. The observations highlighted the significant influence that price adjustments could have on newspaper readership.

In this case, the Court observed that the circulation of the competing newspaper, Thanthi, neither increased during the three‑month interval when the two leading papers raised their prices nor declined when those papers later reduced their prices again. From this observation the Court inferred that more than thirty‑three thousand readers had stopped purchasing any newspaper because of the price increase. Although the period under review coincided with an intensification of drought conditions in Tamil Nadu, which contributed to a general decline in newspaper sales, the Court could not deny that the change in price exerted a substantial impact on the circulation of the two leading papers. The Court noted that, despite being relatively low, newspaper prices are still onerous for many people, a fact highlighted by the Press Commission in paragraph 52 of its report, which stated that the most common reason for households not buying newspapers is the cost and the inability to spare the necessary amount. This conclusion was drawn from the testimony of a large number of individuals and representatives of newspaper associations, and the Court considered it proper to rely on this evidence and to hold that even a modest increase of one paise, intended to preserve the current size of a newspaper, would adversely affect its circulation. While it was suggested that newspapers need not raise prices but could instead reduce the number of pages, the Court warned that compelling a reduction in size would force newspapers to limit the dissemination of news and views, thereby infringing the freedom of expression guaranteed under Article 19(1)(a). The Court further explained that the same objective could be achieved by reducing the amount of advertising space, allowing newspapers to maintain the same editorial space while cutting back on advertisements. It was pointed out that many newspapers allocate a disproportionately large portion of their pages to advertisements, although the Act also applies to newspapers that carry few or no advertisements. Upon the commencement of the Act and the issuance of the Order, any newspaper that possesses a right to publish any number of pages for news and views would be restrained from exercising that right unless it raised its selling price in accordance with the schedule to the Order. Such a requirement would constitute a direct and immediate effect of the Order and would therefore violate the right to free speech and expression under Article 19(1)(a). Moreover, Section 3(1) of the Act, by permitting the allocation of space for advertisements, directly influences the freedom of circulation; if the advertising area is curtailed, the newspaper’s price would be forced upward, and consequently its circulation would inevitably decline.

In that case the Court observed that a reduction in the amount of space allotted to advertisements would not be a remote or indirect effect but a direct consequence that would cause the circulation of a newspaper to fall. The Court explained that the revenue a newspaper earns from advertisements is proportionate to its circulation, so a newspaper with a larger circulation ordinarily receives greater advertising revenue. Consequently, if a newspaper with high circulation were to increase its price, its circulation would decline, which would then reduce its advertising revenue. This reduction in revenue would compel the newspaper either to cease operations or to raise its price further; a further price increase would cause an additional drop in circulation, creating a vicious cycle that could ultimately lead to the newspaper’s closure. The Court further noted that if the space available for advertisements were reduced, the newspaper’s earnings would decrease, forcing it either to operate at a loss, to shut down, or to raise its price. The Court pointed out that the purpose of the Act in regulating advertising space was stated to be the prevention of “unfair” competition, and therefore the Act directly targeted the circulation of newspapers that were alleged to be engaged in such competition. Because the law’s object was to affect newspaper circulation, the Court held that it amounted to a direct interference with the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The Court emphasized that the right to freedom of speech and expression is an individual right guaranteed to every citizen by Article 19(1)(a) and that Article 19(2) does not permit the State to abridge this right on the ground of providing benefits to the public at large or to a particular section of the public. The Court stated that the State is not entitled to curtail or infringe the freedom of speech of an individual for the purpose of promoting general welfare unless such action can be justified under a law that is competent under Article 19(2). The Court acknowledged that the impugned provisions could not be justified on the basis of the grounds mentioned in that clause. However, the State contended that newspapers have two distinct aspects: the dissemination of news and views, and the commercial aspect, and that these two aspects are separate. The State further argued that under clause (6) of Article 19, reasonable restrictions may be placed on the commercial aspect in the interest of the general public. The Court quoted the text of clause (6), which reads: “Nothing in sub‑clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes or prevents the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub‑clause….”

It was observed that the State possessed authority to impose, for the public interest, restrictions on a citizen’s right to conduct business; however, the State was not permitted to achieve that aim by directly and immediately curtailing another constitutional freedom that could not be abridged on the same grounds set out in clause (6) of Article 19. Consequently, the freedom of speech and expression could not be withdrawn merely to place limits on a citizen’s commercial activities. The Court explained that speech could be restricted only for reasons such as the security of the State, relations with foreign States, public order, decency or morality, contempt of court, defamation, or incitement to an offence, and not, like the right to carry on business, on the basis of the general public interest. The Court further held that when a law directly affecting free speech was challenged, it could not be defended by invoking the justification that the restrictions fell within clauses (3) to (6) of Article 19, because the purpose of Article 19 was to list distinct freedoms separately and to specify the permissible limits and objectives for each. Each citizen was entitled to enjoy every freedom concurrently, and clause (1) did not give preference to one right over another. This plain meaning meant that the State could not enact a law that directly restricted one freedom in order to better protect another. The Court therefore concluded that referencing the press as a business and attempting to justify the restriction in the impugned Act as a permissible limitation on the right to conduct publishing business was wholly irrelevant to the question of whether the Act infringed the freedom guaranteed by Article 19(1)(a). The remaining issue was whether the impugned enactment directly burdened the guarantee of free speech and expression. A direct burden would arise either by imposing a restraint on the freedom itself or by restricting something essential to it. The Court identified the newspaper’s right to determine the number of pages it published and its right to circulate to any number of persons as integral components of free speech and expression; any restraint on either would constitute a direct infringement. To illustrate, the Court proposed a hypothetical scenario in which a law limited the number of subscribers a newspaper could have, concluding that such a provision would unmistakably violate Article 19(1)(a) because it would directly curtail the freedom of circulation and the ability of a citizen to disseminate his views beyond the statutory limit.

In the illustration, a statute that limited newspaper “A” or newspaper “B” to a specified maximum number of subscribers would be invalid in view of the guarantee of freedom of speech and expression under Article 19(1)(a). The Court held unequivocally that such a law could not stand because it would directly curtail the freedom to circulate one’s views, a core component of the expressive right. The fact that the same result might be achieved through a schedule of rates did not alter the analysis; the effect on the freedom remained direct even if it was not apparent on the face of the provision. The impugned Act, by inserting sections 4 and 5, expressly barred a newspaper from exercising its right to circulate unless it obtained an order under section 3. This prohibition constituted a direct invasion of the right guaranteed by Article 19(1)(a) and was not a mere incidental or collateral impact as was observed in the Express Newspapers case1. In that earlier case, the challenge to certain provisions of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, on the ground that they infringed Article 19(1)(a) had failed because the legislation aimed to improve the conditions of working journalists and did not directly interfere with the newspaper proprietor’s expressive right. The Court in that decision distinguished between a law’s direct and indirect effects on press freedom, a distinction reiterated by Justice Bhagwati, who observed that the petitioners’ projected consequences—such as reduced circulation, restricted dissemination of information, or dependence on government aid—were remote and dependent on variable factors. Unless such consequences were inevitable and directly derived from the statutory measures, the law could not be struck down as an undue restriction. The present Act’s purpose of affecting circulation was evident from its preamble, which the Court quoted: “An Act to provide for the regulation of the prices charged for newspapers in relation to their pages and of matters connected therewith for the purpose of preventing unfair competition among newspapers so that newspapers may have fuller opportunities of freedom of expression.” The preamble explicitly linked price regulation to the prevention of unfair competition, thereby revealing an intention to influence newspaper circulation, an essential facet of the freedom of speech protected by the Constitution.

The Court observed that the statute sought to regulate a matter that was directly connected with newspaper circulation. Because circulation formed a component of the freedom of speech, the Court held that the Act must be seen as legislation directed against that freedom. By choosing to control the right to disseminate one’s views to any audience that could be reached, the Act targeted an essential and basic aspect of free expression. The Court explained that the purpose of the statute was to enable smaller, financially weaker newspapers to obtain larger circulations, while the provisions, without any disguise, were intended to restrict the circulation of larger, better‑funded papers. Consequently, the Court said the law did not merely interfere incidentally with the right of speech; it acted directly on that right by purporting to regulate the business dimensions of a newspaper. The Court stressed that such a course was impermissible and that the judiciary must remain ever vigilant in protecting what it described as the most precious freedom guaranteed by the Constitution.

The Court further noted that freedom of speech and expression held paramount importance in a democratic system that anticipated changes in legislative and governmental composition. Although the legislation had been drafted on the recommendation of the Press Commission, the Court held that because its objective directly affected newspaper circulation and thereby the ability of the press to shape public opinion, the Act could not be regarded as a harmless tool but rather as a dangerous weapon capable of undermining democracy. Accordingly, the Court rejected the argument that the Act and the accompanying order could be sustained merely because they implemented the Press Commission’s recommendation without any ulterior motive. The Court also declined to apply the reasoning in Hamdard Dawakhana (Wakf) v. Union of India, stating that the factors listed in that decision were irrelevant to the present challenge.

The Court concluded that, taken together, the Act and the order operated as a restraint on the freedom of speech and expression of newspapers. The mere purpose of curbing unfair practices could not justify the restriction on the right of circulation. While condemning unfair practices was permissible, the Court held, it did not provide a basis for limiting circulation. The Court also addressed the argument that the Act aimed to prevent monopolies, noting that even if monopolies were deemed contrary to public interest, the means employed to achieve that goal could not transgress constitutional limits. Thus, the Act could not be upheld on the grounds of its objectives.

Even though the Court had previously concluded that the purpose of the Act and the immediate effect of the Act together with the order that was challenged were to interfere with the freedom of circulation of newspapers, the fact that the Act was intended to suppress monopolies and prevent unfair practices could not be allowed to excuse the restriction. The Court observed that the desirability of the result that the legislation seeks to achieve does not automatically make every method of achieving that result permissible. Even if the end goal is regarded as lawful and beneficial, the means employed must not cross the limits imposed by the Constitution. When a measure directly infringes any of the fundamental rights guaranteed by the Constitution, it cannot be defended on the ground that, apart from the infringed right, the provision is otherwise legal.

The Court also noted that it had been suggested that one of the objectives of the Act was to provide some protection to small or newly started newspapers, and that, on that basis, the Act should be considered good. While the Court accepted that such an objective might be desirable, it held that the State may not achieve it by encroaching upon the right of other newspapers that is guaranteed by Article 19 (1)(a). The Court remarked that there could be alternative methods for assisting small newspapers, and that it was the State’s duty to search for those alternatives. The method chosen by the State, however, was found to be inconsistent with the Constitution. The Court reiterated that the only restrictions that may be placed on the right guaranteed by Article 19 (1)(a) are those authorized by clause (2) of Article 19, and no other restrictions are permissible.

Turning to Writ Petitions 67 and 68 of 1961, the Court observed that the relief granted in the main petition would effectively address the grievances of the petitioners in those two petitions. Consequently, it would be merely academic to decide whether the readers of newspapers could claim a violation of their right under Article 19 (1)(a). Accordingly, the Court declined to pass any order on those petitions. Based on the reasoning adopted, the Court concluded that Section 3(1) of the Act, which is the pivotal provision, is unconstitutional. Therefore, the Daily Newspaper (Price and Page) Order, 1960 made under that provision is likewise unconstitutional. If Section 3(1) is declared void, nothing remains in the Act. The Court therefore allowed the main petition and awarded costs. The petitioners in Writ Petitions 67 and 68 of 1961, as well as the interveners, were ordered to bear their respective costs.