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2006 DIGILAW 88 (DEL)

PROF SUNIL DANG v. UOI

2006-01-16

VIKRAMAJIT SEN

body2006
VIKRAMAJIT SEN, J. ( 1 ) THE challenge in this Writ Petition is restricted and confined to the curtailment of the publication of syndicated articles and material, which initially was 7-1/2% and has been raised to twenty per cent during the pendency of these proceedings. Mr. Parag Tripathi, learned Senior counsel appearing for the Petitioner, has relied on Indian Express Newspaper (Bombay) versus Union of india, (1985) 1 SCC 641, and in particular, to the observations in paragraph 84 thereof, in which the Supreme Court had opined that the freedom of the press means freedom from interference from authority which would have the effect of interference with the content and circulation of newspapers. Therefore, placing any limits on the amount of syndicated material that can be printed in a newspaper, journal magazine or periodical etc. would amount to an infringement of the rights and freedom of the Press. Mr. Tripathi has also relied on secretary, Ministry of L and B versus Cricket Association, Bengal, AIR 1995 SC 1236 , of which the following paragraphs are relevant:"we may now summarise the law on the freedom of speech and expression under Article 19 (1) (a) as restricted by Article 19 (2 ). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one s opinion without interference to as large a population in the country as well as abroad is possible to reach. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one s opinion without interference to as large a population in the country as well as abroad is possible to reach. " ( 2 ) THE fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19 (2) of the constitution. The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, limitations on fundamental rights are specifically spelt under Article 19 (2) of our constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19 (2 ). ( 3 ) THE third decision relied upon is Bijoe Emmanuel And Others versus state of Kerala And Others, (1986) 3 SCC 615 , where the Apex Court has observed that:-"the law is now well settled that any law which be made under clauses (2) to (6) of Article 19 to regulate the exercise of the right to the freedoms guaranteed by Article 19 (1) (a) to (e) and (g) must be a law having statutory force and not a mere executive or departmental instruction. . . . . . The two circulars on which the department had placed reliance in that case had no statutory basis and were mere departmental instructions. "reliance has also been placed on Express Newspapers Private limited versus Union of India, (1986) 1 SCC 133 . The Court referred back to bennett Coleman case, (1973) 2 SCR 757 : (1972) 2 SCC 788 : AIR 1973 SC 106 and clarified, yet again, that the extent of permissible limitations on the freedom of the Press are indicated in the fundamental law of the land itself viz. Article 19 (2) of the Constitution. The Apex Court reiterated the previous view that permissible restrictions on any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive. Article 19 (2) of the Constitution. The Apex Court reiterated the previous view that permissible restrictions on any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive. Accordingly, afortiori, any circular which has the effect of denying restricting, abriding or abrogating a citizen s Fundamental Rights under article 19 (1) (a) would be ultra vires mr. Sidharth Mridul, learned counsel appearing for the Union of india, has firstly contended that no details have been furnished in respect of the syndicated material available to Petitioner for a publication. He has also relied on Narmada Bachao Andolan versus Union of India, AIR 2000 SC 3751 , and, in particular to the observations made in paragraph 261 thereof which is reproduced below for facility of reference. Similar observations were also to be found in Balco Employees Union (Regd.) versus Union of India, AIR 2002 SC 350 . "261. What the petitioner wants the Court to do in this case is precisely that. The facts enumerated hereinabove clearly indicate that the Central government had taken a decision to construct the Dam as that was the only solution available to it for providing water to water scare areas. It was known at that time that people will be displaced and will have to be rehabilitated. There is no material to enable this Court to come to the conclusion that the decision was mala fide. A hard decision need not necessarily be a bad decision. " ( 4 ) THE distinguishing features between these two Judgments and the precedents on which Mr. Tripathi has predicated his assault of the Circular is that Chief Justice Kirpal did not have to deal with the Fundamental Rights especially of freedom of Press. High Court have ubiquitously adhered to the views of the Supreme Court articulated by Chief Justice of India Kirpal in these judgments so far as policy matters are concerned. Jural interference therein would be permissible only if the policy is so unreasonable in the Wednesbury genre that is plaintive cries for interference cannot be ignored. The challenge in this Petition is, however, founded on an infringement of Fundamental Rights, and hence is altogether different. Mr. Jural interference therein would be permissible only if the policy is so unreasonable in the Wednesbury genre that is plaintive cries for interference cannot be ignored. The challenge in this Petition is, however, founded on an infringement of Fundamental Rights, and hence is altogether different. Mr. Mridul has next contended that the issue of prescribeing a limit on the extent of publication of syndicated material is integral to the policy of restricting foreign holding in the equity of Indian newspapers. He further states that another complexion is that there may be indian publication of Foreign Newspapers. Mr. Tripathi has clarified that these issues have not been raised or pressed in this Petition. His simple and concise argument is that if any restrictions are to be placed on the extent of syndicated material to be published in Indian Newspapers or magazines or periodicals etc. , it must be effected through a Law. In this case, the respondents have not exceeded in disclosing any Law which has been passed on the subject. There may be sound reasons for placing an embargo beyond 20%, on foreign material which may be published in India, but if that is so, there should be no difficulty in passing appropriate legislation in Parliament. It is certainly arguable that such a statute would be salutary to Indian interests. Mr. Mridul has also pointed out that in the Judgments relied upon by Mr. Tripathi this question of foreign material being published did not arise. This fact would not be relevant. ( 5 ) SO far as the freedom of the Press is concerned, it is not to be tested on nationality. It is thought and expression which is protected, sans any national boundaries. Of course, if there is a blitz of a particular ideology or thinking it would transform into intellectual proselytisation or indoctrination, which is always antithetical to freedom of thought. ( 6 ) IN these circumstances, the Writ Petition deserves to be allowed. The impugned Circulars placing restrictions on the amount of syndicated material that can be printed in India is struck down. The Writ Petition is allowed accordingly, by quashing the impugned circular as it is controversy to Article 19 of the Constitution. Parties to bear their respective costs. .