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1980 DIGILAW 116 (GUJ)

MANUBHAI D. SHAH v. L. I. C. OF INDIA

1980-06-17

S.H.SHETH, S.L.TALATI

body1980
S. H. SHETH, S. L. TALATI, J. ( 1 ) THE petitioner is the Executive Trustee of Consumer Education and Research Centre (hereinafter referred to as the CENTRE for the sake or brevity) at Ahmedabad. He has filed this petition as a citizen of India and also in his capacity as the Executive Trustee. The Centre published a study entitled A fraud on policy-holders. It is not disputed that it was a scientific research made into the working of the Life Insurance Corporation there in after referred to as the Corporation for the sake of brevity ). This study tried to portray and establish the dis- criminatory practices which the Corporation is alleged to have adopted and which adversely affect a large number of policy-holders their invest- ment policies their expense ralio availability of term insurance and other cognate matters. Mr. N. C. Krishnan who is a Director of the Corpora- tion wrote a reply to it. His reply was published in THE HINDU on 6/11/1978. In that reply he tried to challenge the conclusions recorded in by the study prepared by the Centre. ( 2 ) THE Corporation officially publishes a monthly magazine which is called YOGAKSHEMA. The reply from Mr. Krishnan which was publi- shed by The Hindu was republished by the Corporation in Yogakshema. On a scientific and studied basis the petitioner rejoined Mr. Krishnan and replied to his reply. Since Yogakshema had published Mr. Krishnans reply the petitioner requested the Publicity Manager of the Corporation to publish his reply in Yogakshema. By his letter dated 23/01/1979 the Publicity Manager refused to comply with the request made by the peti- tioner. Therefore on 14/02/1979 the petitioner met the Chairman of the Corporation and submitted to him a written representation reque- sting him to publish in Yogakshema his reply to Mr. Krishnans reply. By his letter dated 8/03/1979 the Chairman of the Corporation refused to comply with the request made by the petitioner. The Chairman while refusing to comply with the petitioners request stated that it was a matter of discretion for the Corporation to publish or not to publish the petitioners reply. ( 3 ) IT is that refusal which has led to the institution of this petition. ( 4 ) BEFORE we record the contentions raised on behalf of the petitioner by Mr. ( 3 ) IT is that refusal which has led to the institution of this petition. ( 4 ) BEFORE we record the contentions raised on behalf of the petitioner by Mr. Patel we would like to note the nature of the periodical public- ation of the Corporation-Yogakshema. Indisputably Yogakshema invites articles from the members of the public and permits republication else- where of what is published in it. It is available to any one on payment of subscription. Its publication is financed by the Corporation out of the public funds which it handle. There is no dispute or doubt about these facts. ( 5 ) MR. Patel who appears on behalf of the petitioner has raised before us the following three contention (1) Inasmuch as the Corporation which is a State has refused to publish the petitioners reply to Mr. Krishnans reply to the Study published by the Centre the petitioners fundamental right under Art. 19 (1) (a) of the Constitution to freedom of speech and expre- ssion has been violated- particularly when the Corporation has published Mr. Krishnans reply in Yogakshema. (2) The petitioners right to equality under Art. 14 has been violated by that action of the Corporation. (3) The Corporation has exercised its discretion arbitrarily. ( 6 ) THE Corporation in its affidavit-in-reply has tried to meet the petitioners claim on three grounds. Firstly it claims editorial privilege. Secondly it claims absolute discretion to publish or not to publish an article. Thirdly Yogakshema is a house magazine and therefore not so much open to the members of the public another periodicals are ( 7 ) IT is well-settled that the Corporation is a State within the meaning of Art. 12 of the Constitution. In SUKHDEV SINGH AND OTHERS V. BHAGATRAM SARDARSINGH RAGHUVANSHI AND ANOTHER (1975) I S. C C. 421 the Supreme Court has held that the Corporation is a State within the meaning of Act. 12 of the Constitution. Therefore the maintainability of this petition against the Corporation for the purpose of enforcing fundamental rights of the petitioner if he has any is not in dispute before us. 12 of the Constitution. Therefore the maintainability of this petition against the Corporation for the purpose of enforcing fundamental rights of the petitioner if he has any is not in dispute before us. The claim made by the Corporation to the editorial privilege to publish or not to publish an article and the claim to absolute discretion to do so or not to do so which it has made cannot prevail over the fundamental rights guaranteed by the Constitution if the petitioner has any in the instant case. Therefore if the petitioners fundamental rights have been violated editorial privilege and absolute discretion must yield place to them and be non-existent. If no fundamental rights of the petitioner have been violated editorial privilege and absolute discretion must prevail and the petition must be dismissed. It cannot be gainsaid that the fundamental rights guaranteed by the Constitution are transcendental in character and over-reach all other things except those which have been protected against them by the Constitution. Therefore the material question which we are required to decide in this petition is whether any fundamental right of the petitioner has been violated. If the question is answered in the affirmative the petitioner must get the relief. If it is answered in the negative he must lose. The contention that Yogakshema is a house magazine and not a mass media is also untenable against the petitioners claim to the enforcement of his fundamental rights We are however not in a position to uphold the contention raised on behalf of the Corpor- ation that Yogakshema is a house magazine which is necessarily circulated only amongst the officers employees and agents of the Corporation and is not a mass media. There are two reasons which lead us to this concl- usion. Firstly it is available to any one on payment of subscription. Secondly it invites articles for publication therein from the members of the public. It is therefore wrong to say that it is a house magazine. Merely because it is interested in a particular subject-matter and happens to find its circulation amongst officers employees and agents of the Corporation it does not attain the character of a house magazine. How- ever assuming that the convention raised by the Corporation that it is a house magazine is correct it does not strengthen the case of the Cor- poration. How- ever assuming that the convention raised by the Corporation that it is a house magazine is correct it does not strengthen the case of the Cor- poration. Under the pretext and guise of publishing a house magazine the Corporation cannot violate the fundamental rights of the petitioner if he has any. House magazines cannot claim any privilege against the fundamental rights of a citizen. Therefore the only question which we must answer is whether any fundamental rights of the petitioner have been violated by the aforesaid action of the Corporation. ( 8 ) THE petitioner claims infringement of two fundamental rights guaranteed to him by the Constitution under Art. 19 (1) (a) and Art. 14 In order to effectively examine the claim made by the petitioners it is necessary to examine the amplitude of these rights. Art. 19 (1) (a) guarantees the following fundamental right: All citizens shall have the right to freedom of speech and expression. Let us now examine the case-law on the subject. ( 9 ) THE first decision is in EXPRESS NEWSPAPER (PRIVATE) LTD. AND ANOTHER V. THE UNION OF INDIA AND OTHERS AIR 1958 S. C. 578. It was a case in which vires of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act 45 of 1955 were challenged. The constitutional challenge was based on the ground that impugned provisions of that Act violated the petitioners fundamental rights guaranteed under Art. 19 (1) (a) Art. 19 (1) (g) Art 14 and Art 32. The decision of the Wage Board was also challenged inter alia on the ground that it violated the petitioners fundamental right guaranteed under Art. 19 (1) (a) and Art. 14. It is in that context that the Supreme Court examined the amp- litude of the fundamental right guaranteed under Art. 19 (1) (a ). In that behalf the Supreme Court has made the following material observations: Art. 19 (1) (a) guarantees to all citizens the right to freedom of speech and expression. It has not to be read along with Art. 19 (2) which lays down certain constitutionally permissible limitations on the exercise of that right. In that behalf the Supreme Court has made the following material observations: Art. 19 (1) (a) guarantees to all citizens the right to freedom of speech and expression. It has not to be read along with Art. 19 (2) which lays down certain constitutionally permissible limitations on the exercise of that right. Art. 19 (2) empowers the State to impose reasonable restrictions on the exercise of the fundamental right guaranteed under Art. 19 (1) (a) in the interests of the security of the State friendly relations with foreign States public order decency or morality or in relation to conte- mpt of Court defamation or incitement to an offence. If any limitation on the exercise of the fundamental right under Art. 19 (i) (a) does not fall within the four corners of Art. 19 (2) it cannot be upheld. Freedom of speech and expression includes within its scope the freedom of the press. To be free is to have the use of ones powers of action (i) with- out restraint or control from outside and (ii) with whatever means or equipment the action requires. Referring to the earlier decision in ROMESH THAPPER V. STATE OF MADRAS A. I. R. 1950 S. C. 124 it has been observed that freedom of speech and expression includes the freedom of propagation of ideas and that that freedom is ensured by the freedom of circulation. Liberty of circulation is an essential to that freedom as the liberty of publication. Since in the opinion of the Supreme Court the fundamental right to the freedom of speech and expression guaranteed under Art. 19 (1) (a) of our Constitution was based on certain provisions of the First Amendment to the Constitution of United States of America reference was made to decisions of the Supreme Court of United States of America in order to appreciate the true nature scope and extent of this right. After having referred to about half a dozen decisions of the American Supreme Court our Supreme Court has laid down that in the United States of America: (a) the freedom of speech comprehends the freedom of press and the freedom of speech and press are fundamental personal rights of the citizens; (b) the freedom of the press rests on the assumption that the widest possible dissemination of information from diverse and antagon- istic sources is essential to the welfare of the public; (c) such freedom is the foundation of the free Government of a free people; (d) the purpose of such a guarantee is to prevent public authorities from assuming the guardianship of the public mind; and (e) freedom of press involves freedom of employment or non-employ- ment of the necessary means of exercising this right or in other words freedom from restriction in respect of employment in the editorial force. (Paragraph 142 of the report) since that is the concept of the freedom of speech and expression which obtains in the United States of America no measure can be enacted which would have the effect of imposing a pre-censorship curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional. With reference to this decision it is necessary to note that in a democracy which ensures a free society widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. ( 10 ) MR. Patel has invited our attention to the decision of the Sup- reme Court in SAKAL PAPERS (P) LTD. AND ANOTHER V. UNION OF INDIA AIR 1962 S. C. 305. In that case the constitutional validity of the New- spaper (Price and Page) Act 1956 and Daily Newspaper (Price and page) Order 1960 was challenged on the ground that they violated the provi- sions of Art. 19 (1) (a) of the Constitution. Interpreting Art 19 (1) (a) in that context the Supreme Court has observed as follows:. . . the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Interpreting Art 19 (1) (a) in that context the Supreme Court has observed as follows:. . . the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundame- ntal and therefore while considering the nature and content of those rights the Court must not be too astute to interpret the language of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must inter- pret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject of course to permissible rest- rictions. 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 ones 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 Cl. (2) of Art. 19. Referring to its earlier decision in Ramesh Thappars case (supra) the Supreme Court has observed that the freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. Freedom of speech and expression are the foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. Therefore very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. The right to freedom of speech and expression is an individual right guaranteed to every citizen by Art. 19 (1) (a) of the Constitution. It is not open to the State to curtail or abridge the freedom for promoting the general welfare of a section or a group of people unless its actions could be justified under a law competent under Cl. (2) of Art. 19. It is not open to the State to curtail or abridge the freedom for promoting the general welfare of a section or a group of people unless its actions could be justified under a law competent under Cl. (2) of Art. 19. It may be within the power of the State to place in the interest of the general public restric- tions upon the right of a 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 Constitu- tion and which is not susceptible of abridgment on the same grounds as are set out in Cl. (6) of Art. 19. Therefore right to freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interest 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. It cannot like the freedom to carry on business be curtailed in the interest of the general public. A citizen is entitled to enjoy each and every one of the freedoms together and Cl. (1) does not prefer one freedom to another. Therefore the State cannot make a law which directly restricts one freedom even for securing the better enjoyment of another freedom. ( 11 ) IN BENNETT COLEMAN AND CO. LTD. AND OTHERS V. UNION OF INDIA AND OTHERS A. I. R. 1973 S. C. 106 the validity of Newsprint Policy of 1972- 73 was challenged on the ground that it was violative of fundamental rights guaranteed under Arts. 19 (1) (a) and 14. It is in that context that the Supreme Court examined the amplitude of the fundamental right guaranteed under Art. 19 (1) (a ). The Supreme Court has made the following observations in that behalf: freedom of speech could not be restricted for the purpose of regulating the commercial aspects of activities of the newspapers. (Paragraph 33 of the report) The freedom to public commercial advertisement is not a part of freedom of speech. The freedom of the press can be enriched by removing the restrictions on page limit and allowing them to have new editions of newspapers. (Paragraph 33 of the report) The freedom to public commercial advertisement is not a part of freedom of speech. The freedom of the press can be enriched by removing the restrictions on page limit and allowing them to have new editions of newspapers. Freedom lies both in circulation and in content. ( 12 ) MR. Patel has invited our attention to illuminating observations made in the dissenting judgment in this case: paragraphs 120 to 125 133 to 135 and 139 and 140. It is risky and imprudent for the High Court to rely upon the observations made in a dissenting or a minority judge- ment. We therefore respectfully refrain from making any reference to them lest we should be unmittingly influenced by them. ( 13 ) THE next decision to which Mr. Patel has invited our attention is in SMT. MANEKA GANDHI V. UNION OF INDIA AND ANOTHER AIR 1978 S. C. 597 The question of personal liberty under Art. 21 arose in that case. Referring to clause (1) of Art. 19 (paragraph 77 of the report this is what the Supreme Court leas observed: it is possible that a right does not find express mention in any clause of Art 19 (1 and yet it may be covered by some clause of that Article. Freedom of press is one such right. It is the most cherished and valued freedom in a democracy. The Supreme Court has further observed as follows:. . . . democracy cannot survive without a free press. Democracy is based essenti- ally on free debate and open discussion for that is the only corrective of govern- mental 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 in enable him to intelligently exercise his right of making a choice free and general discussion of public matters is absolutely essen- tial. 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 health and vigour of a democracy is always to be found in its press. 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 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 vas Mr. Justice Potter Stewart who said: With- out 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 reference with approval has been made in this decision to the earlier decisions of the Supreme Court in Express Newspapers case (supra) Sakal Papers case (supra) and Benett Coleman and Co. s case (supra ). Freedom of circulation is necessarily involved in freedom of speech and expression and is a part of it. It therefore enjoys the protection of Art. 19 (1 (a ). If a right is not specifically named in Art. 1921) it may still be a fundamental right covered by some clause of that Article if it is an integral part of a named fundamental right or partakes of the same basic nature and character as that fundamental right. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. What is necessary to be seen is and that is the test which must be applied whether the right claimed by the petitioner is an integral part of a named right or partakes of the same basic nature and character as the named fundamental right so that the exercise of such right is in reality and in substance nothing but an instance of the exercise of the named fundamental right. This is what Supreme Court has inter alia observed in Maneka Gandhis case (supra ). ( 14 ) MR. This is what Supreme Court has inter alia observed in Maneka Gandhis case (supra ). ( 14 ) MR. Patel has then invited our attention to the decision of the Supreme Court in RAMANA DAYARAM SHETTY V. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA AND OTHERS AIR 1979 S. C. 1628. It was a case of a contract entered into with the International Airport Authority. Referring to the nature of the Governmental activities and manifold increase therein it has been observed by the Supreme Court: the Government cannot be permitted to say that it will give jobs or enter into contracts or issue quotas or licences only in favour of those having grey hair or belonging to a particular political party or professing a particular religious faith. The Government is still the Government when it acts in the matter of granting largess and it cannot act arbitrarily. It does not stand in the same position as a private individual. The Supreme Court has approved the observations made by the Full Bench of Kerala High Court in V. PUNNAN THOMAS V. STATE OF KERALA AIR 1969 Ker 81 that the Government is not and should not be as free as an individual in selecting the recipients for its largess. Whatever its activity the Government is still the Government and will be subject to restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal. The Government is still a Government when it enters into contract or when it is administer- ing largess and it cannot without adequate reason exclude any person from dealing with it or take away largess arbitrarily. When the Govern- ment is trading with the public the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. There should be fairness and equality in the activities of the Government. The Government cannot act arbitrarily at its sweetwill and cannot deal with a person in any manner it pleases. Its action must be in conformity with the standard or norm which is not arbitrary irra- tional or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs contracts quotas licences etc. The Government cannot act arbitrarily at its sweetwill and cannot deal with a person in any manner it pleases. Its action must be in conformity with the standard or norm which is not arbitrary irra- tional or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs contracts quotas licences etc. must be confined and structured by rational relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases the action of the Government would be liable to be struck down unless it can be shown by the Government that the departure was not arbitrary but was based on some valid principle which in itself was not irrational unrea- sonable or discriminatory. ( 15 ) MR. Patel has next invited our attention to two decisions of the American Supreme Court. The first decision is in ESTELLE T. GRISWOLD V. STATE OF CONNECTICUT 14 LAWYERS EDITION 2d 510. It has been observed in that decision. The right of freedom of speech and press includes not only the right to utter or to print but also the right to distribute the right to receive the right to read and freedom of inquiry freedom of thought and freedom to teach - indeed the freedom of the entire university community. The right of association like the right of belief is more than the right to attend a meeting and includes the right to express ones attitudes or philosophies by membership in a group or by affiliation with it or by other lawful means; association in that context is a form of expression of opinion and while it is not expressly included in the First Amendment its existence is necessary in making the express guaranties fully meaningful. ( 16 ) THE last decision to which Mr. Patel has invited our attention is in TIME V. JAMES J. HILL 17 LAWYERS EDITION 2d 456. This is what the American Supreme Court has observed on the freedom of speech. The guaranties of free speech and press are not the preserve of political expression or comment upon public affairs but extend to the vast range of published matter which exposes persons to public view both private citizens and public officials. This is what the American Supreme Court has observed on the freedom of speech. The guaranties of free speech and press are not the preserve of political expression or comment upon public affairs but extend to the vast range of published matter which exposes persons to public view both private citizens and public officials. Freedom of discussion must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period. No suggestion can be found in the Federal Constitution that the freedom guaranteed for speech and press bears an inverse ratio to the timeliness and impo- rtance of the ideas seeking expression. The subject of the magazine article the opening of a new play linked to an actual incident is a matter of public interest protected by the constitutional guar- anties of free speech and press. ( 17 ) MR. Patel has then invited our attention to sec. 6 (1) of the Life Insurance Corporation Act 1956 which provides as follows: subject to the rules if any made by the Central Government in this behalf it shall be the general duty of the Corporation to carry on life insurance business whether in or outside India and the Corporation shall so exercise its powers under this Act as to secure that life insurance business is developed to the best advantage of the community. He has laid special emphasis on the expression the life insurance busi- ness is developed to the best advantage of the community and argued that the best advantage cannot be secured to the community at large only by appreciation and admiration of the business activities of the Corpora- tion. According to him the best advantage of the community can be secured by placing before the community both the appreciative and criti- cal aspects of the business carried on by the Corporation. It cannot be gainsaid that the Corporation exists principally for the benefit of the co- mmunity and not merely for the benefit of those who run it. The commu- nity is therefore entitled to know what drawbacks short-comings and infirmities the business activities of the Corporation disclose Mr. Patel has. therefore argued that for the Corporation to fight shy of publishing the studied criticism of its business activities in its own journal YOGA- KSHEMA is to violate the provisions of sub-sec. (1) of sec. 6. The commu- nity is therefore entitled to know what drawbacks short-comings and infirmities the business activities of the Corporation disclose Mr. Patel has. therefore argued that for the Corporation to fight shy of publishing the studied criticism of its business activities in its own journal YOGA- KSHEMA is to violate the provisions of sub-sec. (1) of sec. 6. ( 18 ) THESE decisions to which we have made reference clearly show and establish that a democratic polity which India is presupposes a free debate and open discussion of all the activities of its public institutions and it is this free debate and open discussion which act as correctives against the lapses of such institutions. It also presupposes that what a democratic or a public institution does in a democratic polity must always suffer the exposure to public view. Thirdly whoever deals with the members of the public and public funds is under an inherent obliga- tion to inform the people of its activities their appreciation and criticism. The expression of diverse and antagonistic views and the dissemination of diverse and antagonistic expressions in regard to the activities of a public institution in a democratic polity constitute the life and soul of democracy. In our opinion it is wrong to say that such a public institution can spend public funds on lionsing itself and singing its own songs. That is not the only purpose to which public funds can be subjected in a democracy. Those who contribute by their mite to the development of a public institution have a right to know how that institution functions what is does where it errs and what steps it takes to correct its errors. If the members of the democratic polity which India is have a right to know all such things as we believe they have then it is the prime duty of the Corporation to publish the studied criticisms of its own activities and every citizen has a right to express through the medium of such Corporation his studied criticism of its activities. That is what in our opinion is the essence of freedom of speech and expression in so far as facts of this case are concerned. By spending public funds on publishing only what is appreciative of its activities and by refusing to publish a critical study of its activities the Corporation will only assume the guardianship of public mind. That is what in our opinion is the essence of freedom of speech and expression in so far as facts of this case are concerned. By spending public funds on publishing only what is appreciative of its activities and by refusing to publish a critical study of its activities the Corporation will only assume the guardianship of public mind. It cannot be allowed to do so as long as at least Art. 19 (1) (a) is on the statute book. ( 19 ) MR. K. S. Nanavaty who appears on behalf of the Corporation has in reply argued by posing the question in a different manner. The question which he has posed is as follows: Can the petitioner a citizen of India force the Corporation to extend to him an opportunity to express his views through their medium ? The question which he has posed for our consideration raises a very important aspect relating to the extent of public participation in governmental working or public administration. Our answer to the question which Mr. Nanavaty has posed for our consideration is in favour of the petitioner because in a democratic polity though people may not directly participate in governmental working or public administration they have a right to demand of those who are in charge of their destiny for the time being bow they deal with the problems which they are facing. A Corporation which carries on the business of life insurance in the shape of a statutory monopoly is answerable to the people of India with whose funds it deals and to whose welfare it claims to cater. ( 20 ) THE next question which Mr. Nanavaty has raised for our considera- tion is whether Art. 19 (1) (a) confers upon the petitioner any enforceable right or obligation to extend such aid and assistance as he demands by a positive act on the part of the Corporation. Our answer to the question is in the affirmative for the following reasons. Firstly the Corporation is a creature of the public will. Secondly it lives on public funds. Thirdly YOGAKSHEMA owned and controlled by the Corporation is financed wholly out of public funds. Whoever deals with public funds under the mandate of the Parliament cannot siphon them only to his admiration and appreciation. Firstly the Corporation is a creature of the public will. Secondly it lives on public funds. Thirdly YOGAKSHEMA owned and controlled by the Corporation is financed wholly out of public funds. Whoever deals with public funds under the mandate of the Parliament cannot siphon them only to his admiration and appreciation. The use of public funds must pass through a double- barrel siphon one of which may voice the appreciation and admiration and the other shall voice its criticism. In this context it has been further argued by Mr. Nanavaty that the reply which the petitioner wrote was published in THE HINDU daily and that the refusal to republish it does not directly and substantially violate the petitioners fundamental right under Art. 19 (1) (a ). In the context in which this question has arisen before us we have got to express our view on how public funds can be spent by a public body. Can they be spent only for blowing the pipe of its admiration and can they be withheld for the purpose of bugling its studied criticism ? It has also been argued by Mr. Nanavaty that sub-sec. (1) of sec. 6 of the Life Insurance Corporation Act 1956 confers no statutory right upon the members of the public or a policy-holder to use the monthly journal of the Corporation. Assuming that it is so Art. 19 places the Corporation as against the students of its activities under an obligation to publish both the studied criticism of its public acclivities and their appreciation. . ( 21 ) IT has next been argued by Mr. Nanavaty that Art. 19 (1) (a) may bit a positive invasion. However no rest can be had to it for supplying a negative omission. The distinction which Mr. Nanavaty has tried to make is indeed a very fine distinction In our opinion Art. 19 (1) (a) embraces within its sweep both acts of omission and commission which curtail or abridge the freedom of speech and expression indeed subject to the rea- sonable restrictions contemplated by Clause (2) of Art. 19 and any such act can be challenged in a Court of law as violative of Art. 19 (1) (a ). ( 22 ) MR. Nanavaty has invited our attention to four decisions to which we are now referring. ( 22 ) MR. Nanavaty has invited our attention to four decisions to which we are now referring. ( 23 ) THE first decision is in HAMDARD DAWAKHANA AND ANOTHER V. THE UNION OF INDIA AND OTHERS A. I. R. 1960 S. C. 554. It was a case under Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 Its consti- tutionality was challenged on the ground that it violated the fundamental rights guaranteed by Art. 19 (1) (a) and Art. 19 (1) (g ). The right to freedom of speech and expression in regard to objectionable advertisements which publish inter alia magic remedies was claimed under Art. 19 (1) (a ). The Supreme Court held that the advertisements which were affected by the said Act did not fall within the words freedom of speech and that therefore there was no direct abridgement of the right of freedom of speech and a mere incidental interference with such right would not alter the character of the law. The Supreme Court has further observed that the form or incidental infringement does not de ermine the constitutiona- lity of a statute in reference to the rights guaranteed under Art. 19 (1) but it is the reality and substance which determine its constitutionality. Sec. 3 of the Act with which the Supreme Court was concerned in the Hamdard Dawakhana case (supra) inter alia prohibited the publication of all adver- tisemcnts referring to certain drugs specified in that section. This decision has no application to the facts of the instant case firstly because the constitutionality of no enactment has been challenged in the instant case and secondly because the studied criticism of the activities of a public body cannot by any stretch of imagination be equated with objectional advertisements which are likely to mislead the people to purchase spuri- ous medicines for self-medication. ( 24 ) THE next decision to which he has invited our attention is in ALL INDIA BANK EMPLOYEES ASSOCIATION V. THE NATIONAL INDUSTRIALTRIBUNAL (BANK DISPUTES) BOMBAY AND OTHERS A. I. R. 1962 S. C. 171. It was a case in which the constitutionality of sec. 34-A of the Banking Companies Act 1949 was challenged. Art. 19 (1) (c) was inter alia brought into the pict- ure. It was a case in which the constitutionality of sec. 34-A of the Banking Companies Act 1949 was challenged. Art. 19 (1) (c) was inter alia brought into the pict- ure. The principles laid down by the Supreme Court in that decision in the context of the facts of that case are too general to be applied to the facts of the instant case. ( 25 ) THE next decision to which Mr. Nanavaty has invited our atten- tion is in RAILWAY BOARD NEW DELHI AND ANOTHER V. NIRANJAN SINGH A. I. R. 1969 S. C. 966. It was a case of a departmental enquiry and the applica- tion of Art. 311 of the Constitution to it. Art. 19 (1) was brought into play and it was contended that it guaranteed a fundamental right for any one to hold meetings in governmental premises. The Supreme Court in that context has observed that the fact that those who work in a public office can go there does not confer on them the right of holding a meeting at that office even if it be the most convenient place to do so. The fact that the citizens of the country have freedom of speech freedom to asse- mble peaceably and freedom to form associations or unions does not mean that they can exercise those freedoms in whatever place they please. The exercise of these freedoms will come to an end as soon as the right of someone else to hold his properly intervenes. Such a limitation is inhe- rent in the exercise of those rights. The validity of such a limitation is not to be judged by the tests prescribed by clauses (2) and (3) of Art. 19. In other words according to the Supreme Court the contents of the freedoms guaranteed under clauses (a) (b) and (c) do not include the right to exercise them in the properties belonging to others. What was contended in that case was the right of the employees to hold meetings in the premises belonging to the railway administration. Right to hold a meeting where all kinds of speeches may be made which may contain an element of excitement cannot be equated with the studied criticism of the activities of a public body. What was contended in that case was the right of the employees to hold meetings in the premises belonging to the railway administration. Right to hold a meeting where all kinds of speeches may be made which may contain an element of excitement cannot be equated with the studied criticism of the activities of a public body. Secondly Art. 19 (1) (a) in that case was pla- ced by the Supreme Court in juxtaposition with Art. (19) (f) under which the Railway Board had a right to hold its property. We do not have now Art. 19 (1) (f) on the statute Book. The principles laid down in that decision therefore have no application to the facts of the instant case. ( 26 ) THE last decision to which Mr. Nanavaty has invited our atten- tion is in JACK H. BREAD V. CITY OF ALEXANDRIA 95 LAWYERS EDITION 1233. In that case a municipal ordinance was published prohibiting canvassers and peddlers from calling upon the occupants of private residences with- out having been requested or invited to do so. The constitutionality of that ordinance was challenged on the ground that it violated the due process clause. The American Supreme Court held that such a municipal ordinance did not violate the due process clause of the Fourteenth Ame- ndment because it did not impose an unreasonable restraint on the right to engage in a legitimate occupation. In that context it has been obser- ved by the American Supreme Court that freedom of speech or press does not mean that one can talk or distribute where when and how one chooses; but the right to do so must be adjusted to the rights of others. In the instant case no rights belonging to other citizens come into picture at all. If the rights of any one come into play they are the rights of the Corporation. We have already observed that the Corporation is a creature of the public will and lives on public funds. It is difficult to imagine for us therefore that a right of such a corporation would be antagonistic to the rights of the citizens or their welfare. Secondly the studied criticism of the activities of the corporation cannot be equated with talking and distributing anything where when and how one chooses. It is difficult to imagine for us therefore that a right of such a corporation would be antagonistic to the rights of the citizens or their welfare. Secondly the studied criticism of the activities of the corporation cannot be equated with talking and distributing anything where when and how one chooses. The principle laid down the aforesaid decision therefore has no application to the facts of the instant case. ( 27 ) IT has also been argued by Mr. Nanavaty that YOGAKSHEMA is the property of the Corporation and that the right cannot be defeated by the petitioner. Firstly the fundamental right to property does not now exist on the statute book. Secondly publication of the studied criticism of the activities of the Corporation always caters not only to the welfare of the members of the public but also to the welfare of the Corporation. The petitioners fundamental right under Art. 19 (1) (a) cannot be defeated by the Corporations nebulous claim to hold its property. It may also be noted that a statutory Corporation unlike the citizens does not have any fundamental right. ( 28 ) IT is necessary to note in this context that we are not deciding in this case whether a citizen has a fundamental right to have his study of a branch of a governmental or public administration published in a governmental or other official journal. We are also not deciding whether a studied reply to something published elsewhere should be published in an official journal if it pertains to public administration or a branch the- reof. We are only deciding whether an official journal which has published something and which is critical of someone elses study should be directed to publish a studied reply to such publication in pursuance of the funda- mental right of freedom of speech and expression guaranteed to every citizen under Art. 19 (1) (a ). In other words does a citizen have a right to give a studied reply through the same journal to what has been pub- lished in it? It may also be noted that what we are deciding is confined only to the field of public administration and to the journals which are published with the aid of public funds and public moneys. Thirdly our decision is confined only to a study and not something which is scurrilous vituperative simply maligning propagandist or otherwise commonplace. It may also be noted that what we are deciding is confined only to the field of public administration and to the journals which are published with the aid of public funds and public moneys. Thirdly our decision is confined only to a study and not something which is scurrilous vituperative simply maligning propagandist or otherwise commonplace. ( 29 ) LET us take in this context an extreme illustration. Assuming that the official Gazette publishes a studied criticism of someones study with- out publishing the original article or study is it under an obligation to publish a studied reply to that study? We are aware of the fact that we do rot have the aid or assistance of a reported case on this aspect. But we are clear in our minds that the Official Gazette is under an obligation to publish a studied reply to such a criticism which is the study of a problem. Assuming that All India Radio or Doordarshan publishes some- thing which is a reply to someones study or is a criticism of someones studied article by naming that person is it under an obligation to publish a studied reply to it? The reasons which have weighed with us in this judgment leave us no alternative but to answer the question in the affir- mative. ( 30 ) IT is necessary in this context to examine the functions of fundame- ntal rights guaranteed under the Constitution to all citizens of India. In our opinion the vital function which a fundamental right conferred upon the citizens fulfills is to ensure or to afford to every citizen maximum opportunity to develop his personality fully so as to enable him to make his best contribution to the development of social good. Secondly they perform the function of drawing a line of demarcation between social good and individual good and to clearly delineate an area showing where in the name of social good a citizen shall not be pounced upon. Thirdly their function is to maintain healthy and sound democracy and to ensure the even development of a free society. Freedom and democracy in a democratic polity thrive on them. Thirdly their function is to maintain healthy and sound democracy and to ensure the even development of a free society. Freedom and democracy in a democratic polity thrive on them. In order that the fundamental rights perform such vital functions in a democratic polity diverse and antago- nistic criticism is the essence of healthy democracy because it keeps public administration alert and always on its tows in order to enable it to shrug off lethary inaction complacency inefficiency waste and corruption. A studied criticism of an antagonistic character is in our opinion an artery of democracy. There is no doubt about the proposition that public funds must be spent for social good and public welfare. Social good and public welfare cannot be brought about merely by publishing ones eulogy and appreciation. Their seeds lie as much in the criticism-nay more in it-than in eulogy and appreciation. Both appreciation and criticism are the sust- aining pillars of democracy and both are necessary ingredients of social good and public welfare in a democratic polity. Democracy is not an in- stitution of flattery or psychophancy and freedom is not its removable gift to the people-revocable at the sweetwill and pleasure-by those who for the time being are placed in charge of the destinies of people. Ther- efore a public organ in the interests of democracy and in the interests of healthy and free society must be available to both to an admirer and to a critic. To lean on one side more than on the other is likely to produce a lop-sided and misleading picture of an otherwise free society. Interests of the members of the public demand both criticism and appr- eciation. Therefore the author of every studied criticism has a right to have it published in the concerned official organ. The Corporation is a public body and belongs to no individual. Therefore the considerations which govern the case of an individual do not apply to a statutory public body. Every citizen has a right to demand of the State to make available to him a particular channel or channels for publishing his studied criticism of the concerned branch of public administration. To make such an opp- ortunity available to an admirer and to deny it to a critic is to deny to him his freedom of speech and expression and to throttle democracy. To make such an opp- ortunity available to an admirer and to deny it to a critic is to deny to him his freedom of speech and expression and to throttle democracy. ( 31 ) IT is the basic and cardinal principle of the interpretation of a democratic Constitution that it is interpreted to foster develop and enrich democratic institutions. Irrespective of whether it is inscribed in any book on jurisprudence it is inherently implicit in democratic Constitution itself. It runs through every constitutional artery. It is its life and soul. To interpret a democratic Constitution so as to squeeze the democratic institutions of their life-giving essence is to deny to the people or a section thereof the full benefit of the institutions which they have established for their benefit and to cease to be faithful and loyal to the Constitution to uphold and protect which a Judge takes his oath before entering upon his office. Salt loses its flavor when a Judge ceases to be a Judge and mechanically approves all executive actions challenged before him. A democratic Constitution cannot be interpreted in a narrow and pedantic (in the sence of strictly literal) manner. It lays down basic norms of community life which must find on judicial interpretation their true reflection in every aspect of human life-individual and collective. It is the prime duty of judiciary-the last bastion in the edifice of democracy -to be and to remain impregnable to inject life and soul into its institutions and to transplant a heart in it which always throbs and pulsates and which never fails to function. Therefore any constitutional interpretation which subverts the free social order is in our opinion anti-constitutional. Since appreciation and criticism (both studied) are the quintessence of a free society both must thrive under freedom of speech and expression. In our opinion therefore denial to publish the petitioners studied reply to Mr. Krishnans reply has violated the petitioners fundamental right under Art. 19 (1) (a) of the Constitution. ( 32 ) THE next contention which has been raised by Mr. Patel flows from Art. 14. There is no doubt about the fact that in the matter of disbursement of public funds the Corporation has preferred its admirer to its critic. Mr. Patel has invited our attention to two decisions of the Supreme Court in this behalf. ( 32 ) THE next contention which has been raised by Mr. Patel flows from Art. 14. There is no doubt about the fact that in the matter of disbursement of public funds the Corporation has preferred its admirer to its critic. Mr. Patel has invited our attention to two decisions of the Supreme Court in this behalf. ( 33 ) THE first decision is in RAILWAY BOARD V. M/s. OBSERVER PUBLICATIONS (P) LTD. A. I. R. 1972 S. C. 1792. In that case the question which arose was whether the Railway Administration should provide equal opportunity to all the popular newspapers for sale in their stalls en the same terms. Sub-clause (viii) of Clause 742 of the Railway Code provided that obscene books pictures and publications shall not be sold in Railway premises. In that behalf the Supreme Court observed that if the Government has not made any order prohibiting the sale of any newspaper on the ground that it is obscene the Railway Board cannot impose ban on sale of that newspaper under Clause 742 (v ). In the context of Art. 14 the Supreme Court has held that if other publications containing similar matters are not prohibited from sale by the Board its order is liable to be quashed as violative of Art. 14. In other words in the matter of dissemination of information and sale of publications all must be treated alike unless the Government has banned the sale of a particular publication. ( 34 ) THE next decision to which our attention has been invited by Mr. Patel is in RAMANA DAYARAM SHETTY V. THE INTERNATIONAL AIRPORT AUTHORITY OF INDIA AND OTHERS A. I. R. 1979 S. C. 1628. The principle which has been laid down in that decision by the Supreme Court is that in matters of executive discretion all must be treated alike or equal treatment should be meted out to all. He has invited our attention to Art. 14 of the Constitu- tion which specifies a directive principle of State policy. It provides as under: the State shall within the limits of its economic capacity and development make effective provision for securing the right to work to education and to public assis- tance in cases of unemployment old age sickness and disablement and in other cases of undeserved want. This Article does not have any application to the instant case. It provides as under: the State shall within the limits of its economic capacity and development make effective provision for securing the right to work to education and to public assis- tance in cases of unemployment old age sickness and disablement and in other cases of undeserved want. This Article does not have any application to the instant case. To make available public funds to an admirer and not to a sober critic in our opinion violates the guarantee of equality enshrined in Art. 14. Both in our opinion have an equal and an honorable place in our social order. Therefore given all other things equal both must be treated equally and alike. Again given all other things equal they belong to the same class and not to different classes. Therefore both are entitled to equal treatment. ( 35 ) IN that view of the matter refusal to make available to the petitioner YOGAKSHEMA for voicing his studied criticism has in our opinion violated the petitioners fundamental right under Art. 14. The action of the Corporation is therefore violative of the fundamental rights guaranteed to the petitioner both under Art. 19 (1) (a) and Art. 14. ( 36 ) IN view of the findings which we have recorded we allow the petition and issue a writ of mandamus directing the respondents to publish in the immediate next issue of YOGAKSHEMA the petitioners reply to Mr. Krishnans reply which was published in YOGAKSHEMA earlier. Rule is made absolute with costs. ( 37 ) MR. K. S. Nanavaty who appears on behalf of the respondents makes an oral application for staying the implementation of the writ issued by us. This is not a fit case for staying the implementation of the writ. The oral application made by Mr. K. S. Nanavaty is therefore rejected. .