Licensing / Media Regulation
The Case of Patrick Chitongo
Closed Expands Expression
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The Supreme Court of India accepted petitioners’ challenges that certain restrictions and regulations on newspapers affected the right to freedom of speech and expression. The petitioners challenged the restrictions on the import of newsprint under Import Order 1955; the regulation of sale, acquisition, and use of newsprint under Newsprint Order 1962; and the direct regulation of size and circulation of newspapers under the Newsprint Policy of 1972-73. The Court found that because the freedom of the press involved both qualitative and quantitative dimensions, the Newsprint Policy was unconstitutional as its quantitative restrictions were not justified by a shortage of newsprint; the Newsprint Order and Import Control Order were not struck down.
The petitioners are media conglomerates involved in the publication of newspapers. They challenged the restrictions on the import of newsprint under Import Control Order 1955 and on the manner in which this is used by newspapers under the Newsprint Order 1962. Further, the Newsprint Policy of 1972-73 placed further restrictions based on four features: first, no new newspapers may be started by establishments owning more than two newspapers if at least one of which is a daily; second, the total number of pages may not exceed ten; third, the increase in number of pages may not be more than 20% for newspapers that are under ten pages; and, finally, no-interchangeability of newsprint may permitted between different newspapers of the same establishment or between different editions of the same paper. Therefore, the petitioners were not allowed to make adjustments in circulation, etc., under these newsprint policies even within the quota limit. This was challenged for violation of Article 19(1)(a) of the Indian Constitution.
The respondents argued that the petitions were not maintainable because companies do not enjoy fundamental rights, which are available only to natural persons. Further, the respondents argued that Article 358—the Constitution’s provision for “emergency powers”—barred any challenge on grounds of fundamental rights. They also proposed a subject-matter test of restriction rather than an “effects test.” Accordingly, the restrictions were valid because they regulated the commercial operations of newspapers in order to prevent monopolies, by which any effect on freedom of expression was incidental. Finally, they asserted that the question of whether newsprint import must be increased was a question of policy that could not be challenge on any grounds except “mala fide.”
J. Ray delivered the opinion of the court. As a preliminary question, the Supreme Court observed that the petitions were maintainable. The fact that the petitioners were companies was not a bar to award relief for violation of the rights of shareholders and editorial staff (who were also petitioners). Further, the bar under Article 358 did not apply to laws passed before the proclamation of emergency, and, therefore, the newsprint policy could be challenged as a continuation of the previous year’s policy and relevant orders.
On merits, the Court noted that freedom of the press was an essential element of Article 19(1)(a) and the absence of an express mention of such freedoms as a special category was irrelevant. Free press was to be regarded as an essential element of freedom of expression in general. The Court also observed that shortage of newsprint could be tackled by fixing the quotas. However, direct interference in terms of page limits and other such regulation was not justified. The page limit meant that the newspapers would either lose economic viability due to reduction in advertisements or be forced to reduce news content. This would limit freedom of expression because, in the first case, circulation would drop due to increased costs, and, in the second, there were quantitative restrictions on content.
The Court observed that freedom of the press had both quantitative and qualitative elements and, therefore, the quantitative controls constituted restrictions on freedom of expression. Since they were not justified on the basis of shortage of newsprint, they could not be considered to be reasonable restrictions. The Court held that the Newsprint Policy of 1972-73 was unconstitutional. However, the Newsprint Order and Import Control Order were considered not to be the source of these restrictions and were not struck down.
J. Beg, in a concurrence, observed that the Newsprint Policy of 1972-73 was outside the scope of the Import Control Order, which provided only for fixing of quotas and no further interference. Therefore, the question of whether the restrictions were reasonable did not arise, as the government action had no legal basis in the first place.
J. Mathew, in a dissent, observed that there was no direct regulation of content and that a restriction on number of pages did not mean an abridgment of freedom of expression. He reasoned that the control of newsprint and regulating its distribution was necessary to ensure that it was efficiently utilized. Insofar as it made newsprint utilization efficient and prevented monopoly by a few newspapers, the policy expanded rather than abridged freedom of speech and expression. He disagreed with the majority judgment and held that the policy was not unconstitutional.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision recognizes that freedom of the press is not restricted to freedom from direct regulation of content. Quantitative restrictions that are not purely content-based can also affect freedom of the press. The Supreme Court, in this case, recognized that for freedom of press to be effective, unnecessary interference that affects its economic viability must be prevented.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
India is a common law country and stare decisis applies. Therefore, the judgment of the Supreme Court will be binding on all lower courts as well as on the Supreme Court, unless a larger bench is constituted.
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