1. This petition is taken up for hearing at the Notice of Motion stage as agreed by the learned counsel for the parties.
2. The petitioner 1, Dainik Sambad, is a daily newspaper published in Bengali from Agartala, Tripura and petitioner 2 is its owner and Editor. The petitioners allege violation of rights under Articles 14, 19(1)(a), 19(1)(g), and 300A of the Constitution of India making mainly five grievances in this petition, namely, (i) that while constituting the Press Advisory Committee with a view to guide the Government of Tripura in matters of its advertisement policy and qther matters concerning the press, it discriminated against and interfered with freedom of press of Dainik Sambad by excluding its Editor from the Committee while including those of Weekly Desher Katha, Tapari, Tripura Reporters Guild, and Gandaut; (ii) that the Government has discriminated against the petitioners while fixing the rates structure for Government advertisement in its advertisement policy, particularly in respect of display advertisements fixing Rs. 4/- per column centimetre, which the D.A.V.P, pays Rs. 7,50 per column centimetre; (iii) that contrary to the advertisement policy of the Government of Tripura, the petitioners have been discriminated against by reducing the quantum of advertisements allotted to Dainik Sambad; (iv) that the Tripura Advertisement Policy Rules empowering the Government to Tripura to stop issuance of Government advertisement to a newspaper which according to it incites communal feelings or breach, violation or offends socially accepted conventions of public decency and morals, are unconstitutional, void and inoperative; and (v) that the order stopping subscription of 408 copies of Dainik Sambad to the Government information centres, is unconstitutional and void
3. Mr. J. P. Bhattacharjee, the learned counsel for the petitioners, submits that this is a fit case where this Court should intervene to remove the manifold discrimination against the newspaper Dainik Sambad.
4. Mr. A. Chakravarty, the learned Government Advocate, Tripura, submits, inter alia, that the Dainik Sambad has always been critical of the Government of Tripura, and in its Editorials it raises communal frenzy and refuses to publish contradictions and the Government of Tripura is not bound to give advertisement to it equally with other newspapers so as to facilitate its circulation; that the Government has not passed any order to reduce advertisement to Dainik Sambad though it appears that it has been reduced; that as several months of the year are still left the argument of discrimination is futile one; and that the Press Council of India having been in seisin of the entire matter this Court should not exercise jurisdiction, inasmuch as pendency of this petition in this High Court will deprive the Press Council of its jurisdiction in the matter.
5. The first question to be decided, therefore, is whether this Court should exercise its writ jurisdiction when the Press Council of India is already in the seisin of the matter. Mr. Chakravarty, referring to para 52 of the counter-affidavit of the respondents 1, 2 and 3, submits that according to the Press Council Act, 1978 the Council is the only statutory judicial body to look after the independence, of the journalists and to safeguard freedom of the press; that Section 13 of the Press Council Act read with Sections 12 and 14 would clearly show that the Press Council of India is also the supreme authority to give any verdict against any Government either State or Union Government; and, therefore, the Press Council of India is the appropriate forum to decide any matter pertaining to the press and it is competent enough to grant relief either to the press or to any person or authorities or against the press. Mr. Chakravarty further submits that the petitioners themselves have rightly chosen the Press Council of India to place their grievances regarding alleged reduction of issue of advertisement to the petitioner's newspaper and to adjudicate their allegations that the Government of Tripura stopped purchasing 408 copies of Dainik Sambad from 10-1-1987 and hence the petitioners are barred by the principles of estoppel, waiver and acquiescene from coming to this Court. Mr. Bhattacharjee, while not denying that the matter is already before the Press Council of India, submits that in so far as discrimination and violation of Articles 14, 19(1)(a), 19(1)(g) are concerned, this Court has ample jurisdiction to interfere and to that extent it cannot be said to be ousting the jurisdiction of the Press Council of India. For deciding this question the relevant provisions of the Press Council Act may conveniently be referred to.
6. The Press Council Act, 1978 (Act No. 37 of 1978) is an Act to establish a Press Council for the purpose of preserving the freedom of the press and of maintaining and improving the standards of newspapers and news agencies in India. Section 4 of the Act provides for incorporation of the Press Council which is composed of eminent members having special knowledge or practical experience including working journalists and editors of newspapers find persons, who own or carry on the business of management of newspapers. The objects of the Council as provided in Section 13 shall be to preserve the freedom of the press and to maintain and improve the standards of newspapers and news agencies in India and in furtherance of those objects the Council may perform amongst others, functions (a) to help newspapers and news agencies to maintain their independence; (e) to keep under review any development likely to restrict the supply and dissemination of news of public interest and importance; (i) to concern itself with developments such as concentration of or other aspects of ownership of newspapers and news agencies which may affect the independence of the Press, and, to do such other acts as may be incidental or conducive to the discharge of its prescribed functions. Section 14 of the Act provides :
"14. Power to censure.-- (1) Where, on receipt of a complaint made to it or otherwise, the Council has reason to believe that a newspaper or news agency has offended againstthe standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct, the Council may, after giving the newspaper, or news agency, the editor or journalist concerned an opportunity of being heard, hold an inquiry in such manner as may be provided by regulations made under this Act and, if it is satisfied that it is necessary so to do, it may, for reasons to be recorded in writing, warn, admonish or censure the newspaper, the news agency, the editor or the journalist or disapprove the conduct of the editor or the journalist, as the case may be:
Provided that the Council may not take cognizance of a complaint if in the opinion of the Chairman, there is no sufficient ground for holding an inquiry.
(2) If the Council is of the opinion that it is necessary or expedient in the public interest so to do, it may require any newspaper to publish therein in such manner as the Council thinks fit, any particulars relating to any inquiry under this section against a newspaper or, news agency, an editor or a journalist working therein, including the name of such newspaper) news agency, editor or journalist.
(3) Nothing in Sub-section (1) shall be deemed to empower the Council to hold an inquiry into any matter in respect of which any proceeding is pending in a court of law.
(4) The decision of the, Council under Sub-section (1), or Sub-section (2), as the case may be, shall be final and shall not be questioned in any Court of law".
Section 15 provides for general powers of the Council and vests in it the same power"as are vested in a Civil Court while trying a suit under the C.P.C. in respect of the matters stated there under. Every inquiry held by the Council shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Penal Code and the Council may, if it considers it necessary for the purpose of carrying out its objects or for the performance of any of its functions under this Act, make such observations, as it may think fit, in any of its decisions or reports, respecting the conduct of any authority including Government. The Council may make its Regulation under Section 26.
7. Thus the Press Council of India is an independent statutory body, which has been entrusted with the responsibility of discharging the two public duties, namely, (i) preserving the freedom of the Press, and, (ii) maintaining and improving the standards of newspapers and news agencies in India, As was observed in a speech delivered by Justice A. N. Sen, Chairman, Press Council of India on 26th Aug., 1986 at the Symposium organised at Jaipur by the Rajasthan Unit of the All India Small & Medium Newspapers. Federation ;
''It is now well settled that the freedom of the Press is guaranteed as a fundamental right under Article 19(1)(a) of the Constitution, only subject to reasonable restrictions imposed or to be imposed by law under Article 19(2) of the Constitution in matters relating to 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 any offence'. The Press Council acts as a watch-dog to see that the guaranteed freedom of the press, is not interfered with..... and the Press Council will, always try to safeguard the independence of the press and to remedy any situation that may arise as a result of any interference by. any authority with the freedom of the press. In case of any interference with the freedom of the poses, the Press Council even takes suo motu action."
This fundamental right has been conferred essentially in public interest to enable the Press to exercise this right in the service of the people and of the nation. Freedom bf the Press is regarded as essential for the healthy growth and systematic functioning of any democracy, but it must not be misused to bring about a destruction of the democratic structure. Any misuse of this freedom may cause a lot of harm and mischief. The Press Council always seeks to protect independence of the Press and to see that there is no kind of interference from any quarter with the guaranteed right and to pull up parties against any kind of misuse of the freedom or violation of the, general norms and ethics. Reprisal measured against newspapers for publication of news items has always been commented upon by the Press Council.
8. In the matter of discretionary allotment of advertisements to different newspapers by State Governments the Press Council had exercised jurisdiction in several cases. In, a complaint dt. May 4, 1985 the Editor of Bingsa Mukti Surjya' alleged that his newspaper which came into existence in May, 1980 and which had been highlighting the deeds and misdeeds of the Administration/Authority ever since its inception, had not been given even one Government advertisement despite the fact that his weekly was very much covered within the framework of the advertisement policy framed by the Government of Tripura, The complainant further alleged that marry other weeklies with lesser circulation and which came into existence later had been favoured with Government advertisements to the disadvantage of his weekly. The Government of Tripura in its comments stated that the Government advertisements in favour of weeklies or a periodical were granted on the recommendations of the Press Advisory Committee set up for the purpose. On the recommendations of the Press Advisory Committee, display advertisements on different occasion were being released to the weekly in question.
9. The complainant in his counter comments reiterated what he had submitted in the complaint. This matter was considered by the Inquiry Committee of the Council at its meeting held on June 12, 1986 at Calcutta when Shri Santosh Dutta, complainant, appeared before the Committee. None appeared on behalf of the State Government of Tripura. Upon hearing Shri Dutta and upon perusing papers, the Committee was of the opinion that the State Government in its comments had adopted a fair attitude in the matter of issuing advertisements. The Committee was, however, surprised that though the Government had categorically stated more than a year ago that they had decided on the recommendations of the Press Advisory Committee to give display advertisements to the weekly on different occasions, no such advertisements had been given so far. The Committee felt that this was not proper and the Committee expected the State Government to act in terms of the statements made in the pleadings before the Council. The Committee also requested RNI to expedite action for supplying to the State Government figures of circulation of the Weekly so that necessary action could be taken in the matter of release of advertisements, other than display advertisements. The Council disposed of the complaint in terms of that order. This decision was rendered on Aug. 5, 1986. (The Press Council of India Review, Vol. 7, October, 1986, No. 4 pp. 54-55).
10. Similarly in a complaint forwarded by the President of All India Small & Medium Newspapers Federation, New Delhi on July 27, 1984, the Editor, 'Bihar Mail' alleged that the Information & Public Relations Department, Patna had passed an order banning the release of Government advertisements in favour of his weekly on the ground of irregularity committed by him by taking payment from the Office of Executive Engineer, Public Health Circle, Sitamarhi in lieu of the publication of the advertisement in his paper. According to the complainant, all his efforts to find out the reasons for the indifferent attitude of the concerned officers towards his weekly proved an exercise in futility.
11. The State Government of Bihar in its comments stated that the Weekly in question was delisted by the Information & Public Relations Department on the ground that the payment in lieu of the publication of three advertisements in question was taken from the office of the Executive Engineer, Public Health Department, Sitamarhi by its editor fraudulently since order for the purpose of publication of the impugned advertisement was procured by the complainant by way of manipulation and in connivance with some officials of the Collectorate, Sitamarhi and that was not properly passed. The State Government further submitted that the entire matter was examined by a Committee under the Chairmanship of Home Commissioner and after going through the records, the Committee recommended that the weekly may be delisted and the order to delist the Weekly was accordingly passed. This matter was considered by the Inquiry Committee and the Council expressed its displeasure to note that the State of Bihar had not complied with its direction and it was of the view that the order of delisting the complainant's paper for release of advertisement without affording him any opportunity was not properly passed The Committee was therefore, of the view that the impugned order should be withdrawn by the State of Bihar and advertisement should be restored. The Committee, however, made it clear that it would be appropriate for the State Govt. to take such action against the complainant as may be necessary after giving the complainant a reasonable opportunity of being heard, (ibid pp. 60-62).
12. So also in a complaint by the Editor/Publisher, 'Shram Sangam', a Gorakhpur based Hindi weekly alleged that the State Government of Uttar Pradesh bad neither issued his weekly any Government advertisement nor granted him accreditation facilities since certain news items casting aspersion on certain influential persons or high officials were published in his weekly. The complainant further submitted that the Information Department of the Government bf Uttar Pradesh impressed upon him to improve within three months his way of writing about influential persons and high officials and it was only then that his case for release of Government advertisements or grant of accreditation card in his favour would be, considered. The complainant further alleged that reprisal against his weekly was owing to the fact that he belonged to an opposition and published criticism freely and fearlessly. The Director of Information and Public, Relations, Government of Uttar Pradesh informed in his comments that due to the fact that there was some change in the standard of the newspaper concerned and its regularity, the advertisements in favour of the weekly were not released but that the Government was considering the case and the decision as and when taken would be communicated to the Press Council. After carefully considering the submissions of the parties, the Committee regretted the lack of proper assistance from the representative of the Government in this case in furnishing the requisite information. The Committee was of the opinion that the decision on the cases of the complainant should have been taken by this time. In this view of the matter, the Committee directed the State Government to take appropriate decision on the cases of the complainant for release of advertisement and for the accreditation facility within three months and report compliance.
13. In a complaint by the Editor, O'Heraldo, an English Daily of Panjim-Goa, it was alleged that on account of publication of certain critical news-items/articles the Administration of Union Territories of Goa had discriminated against his paper in the matter of release of advertisements. The Committee, while holding the complaint to be vague, noted that the Government had to keep in view its statutory obligations while releasing advertisements.
14. In a complaint by the Editor/Publisher, News-week, a Purnea-based Hindi Weekly if was submitted that his weekly had been on the approved list of Government of Bihar and Government of India for release of advertisements and that he was receiving advertisements from the Government of Bihar/Government of India. The Government of Bihar had laid down a policy to release 40 per cent advertisements to big newspapers and 60 per cent advertisements to small newspapers of the District level According to the complainant, the District Magistrate, Purnea had not been releasing any advertisements to any small newspaper. published from District Purnea and instead, he had been releasing all the District level advertisements to big State Capital newspapers only, ignoring the right of small newspapers of the District. The complainant further alleged that by doing so the District Magistrate was not only violating the Government policy to release 60 per cent advertisements to small newspapers but also ignoring the privileges to get advertisements of District which the local newspapers deserved and the above action of the District Magistrate was an interference with the freedom of the press. The State Government of Bihar did not furnish their comments in the matter. The Committee, therefore, held that the case of the complainant went unchallenged and the complain was accordingly upheld and it directed the State Government to release advertisements to the complainant in accordance with its policy.
15. The Press is subject to the ordinary law with few exceptions. A, further degree of control is exercised by the Press Council which in our country is a statutory body. In England the Press Council was non-statutory body set up by the news papers industry itself on the recommendation of the Royal Commission on the Press, 1947-1949(c) - Complaint relating to invasion of privacy misrepresenting or other objectionable conduct by newspaper or persons employed by them could be submitted to the Press Council in England for investigation.
16. "The Press" generally covers, printed matter of all kind and not merely newspaper. and periodicals. "The liberty of the Press", says Blakestone -- "consists in laying no previous restraints upon publication and not in freedom from censure for criminal matter when published". This liberty said Lord Mansfield in Dean of St. Asaph's case --"consists in printing without any previous licence, subject to the consequences of law". "Liberty of the Press", said Alexader Hemilton -- "Is the right to publish with impunity truth with good motive for justifiable ends though reflecting on Govt. magistracy or individual. It had existed in England since the end of the l7th Century. The Press, it is said has no privilege not to disclose the sources of its information in, judicial proceedings or in statutory inquiry having the same status as a Court. The Court has a discretion whether to require the information to be given and unusally will not insist on an answer if it is not essential to the case.
17. In our Constitution there is nor separate guarantee of freedom of the Press, it is implicit in the freedom of expression which was conferred on all citizens as was held in Virendra v. State of Punjab, AIR 1957 SC 896 and Newspapers v. Union of India, AIR 1958 SC 578. The freedom of the Press under our Constitution is not higher than the freedom of an ordinary citizen and it is subject to the same limitations as are imposed by Article 19(2) and to those limitations only. It was so held in Sakal Papers v. Union of India, AIR 1962 SC
305. The Press cannot claim immunity from the regulation of the commercial activities of a newspaper, without interfering with its freedom of expression. This was settled in Bennet Coleman v. Union of India, AIR 1973 SC 106. Any restriction that is, directly imposed upon the right to publish, to disseminate information or to circulate constitutes a restriction upon the freedom of the Press as the law was settled by Express Newspapers (supra) and Sakal Papers (supra). The right to circulate refers to the matter to be circulated as well as the volume of circulation. To require a newspaper to reduce its space for advertisements would directly affect its circulation since it would be bound to raise its price. It would amount to unreasonable restriction upon the freedom of the press to subject it to laws which take away or abridge the freedom of expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter it s freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid. Similarly, to single put the Press for laying upon it excessive and prohibitive burdens which would restrict the circulation or result in seeking an alternative paper may amount to unreasonable restriction. It may also amount to unreasonable restriction to require the newspaper either to reduce the number, of their pages or to raise their prices, according to the schedule prescribed by the, State, on some ground extraneous to Article 19(2) of the Constitution. Any measure directed towards the elimination of unfair competition amongst newspapers or to fix a maximum page level may amount to interference with the freedom of press as was held in Bennett Coleman (supra). The State may restrict commercial activities of a news paper, in the public interest, insofar as that can be done without restricting the freedom of expression or circulation of a newspaper. The right to publish an advertisement cannot be said to be a part of freedom of expression, but, if a restraint on advertisement curtails circulation it would offend Article 19(1)(a).
18. Can a newspaper to which allotment of Government Advertisements happened to be gradually reduced complain of discrimination ? Would it affect its freedom of press requiring or justifying judicial review ? The strongest of Anti-discrimination legislation is to be found in Article 14 of the Constitution of India read Articles 15 and 16 enabling judicial review of allegation of discrimination and to provide legal remedies to the victims of unlaful discrimination. In, order to establish discrimination of a prohibited ground the complainant has to establish that others less well or no better qualified than himself received more favourable treatment and alleged discriminatory refusal of state encouragement economic or otherwise may amount to hostile discrimination. The use of an ostensible unfettered discretionary power may result in discrimination. Even licensing powers, it has been held, cannot be used to discriminate against political or religious opponents as was held in Roncarelly v. Duplessis, (1962) 1 DLR 680. The Court shall strike down an order if it is found to have been based on discrimination prompted by an ill-will, dislike of one's political views, favouritism or improper motives. If a discretionary power is exercised hi disregard of relevant considerations or on considerations that cannot be lawfully taken into account and it results in discrimination it may be struck down.
19. In the cases of Indian Express Newspapers (Bombay) Pvt. Ltd. (AIR 1958 SC578); Coleman and Co. Ltd (AIR 1973 SC 106); Statesman Ltd.; Kasture and Sons Ltd.; Ananda Bazar Patrika Ltd. v. Union of India, AIR 1986 SC 515 : 1985. Tax LR 2451, Venkataramiah, 3. speaking for the Court observed that newspapers constitute the fourth estate of the country and the State should not single out the newspaper industry for harsh treatment. Custom duty on newsprint, it has been observed, is an impositionon knowledge and would virtually amount to a burden around a man for being literate and for informing himself about the world around him Public interest in freedom of expression (of which the freedom of press is one establishment) stands over the requirements of the members of the democratic society. Freedom of expression has four broad social purposes to serve : (i) it helps an individual to attain self fulfillment; (ii) it assists in the, discovery of truth; (iii) it strengthens the capacity of an individual in participating in decision making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. "In sum, the fundamental principle involved here is the people's right to know". Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of the people in the administration. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be cautious while adopting fiscal or other measures concerning newspaper industry. The same principle shall apply against any sort of State' interference of discriminatory action reducing circulation of newspaper Exercise of taxing power by the State has been held to be subject to scrutiny by courts. The exercise of any other power increasing the burden on the newspaper is similarly subject to scrutiny of the courts. Such power should not be used on the newspaper establishment so as to make the establishment subservient to the Government of that the newspaper will have to run after the Government. Merely because the Government has the power the freedom of press would not be totally lost and the court is always there to hold the balance and to strike down unconstitutional invasion of that freedom. The newspaper industry enjoys two of the fundamental rights' namely, freedom of speech and expression guaranteed under Article 19(1)(a) and freedom to engage in any business. Any measure adopted by the Government to transgress into the field of freedom of expression and to stifle that freedom would be unconstitutional. The Court can determine precisely at what stage there has been transgression in this regard with a view to suppress the newspapers. Governments often have used diverse methods to keep the press under control thereby interfering with free flow of information. For checking such malpractices, democratic constitutions all over the world made provisions guaranteeing the freedom of speech and laying down the limits of interference with it; and it has been held that it is the primary 'duty of all Courts to uphold the said freedom and invalidate all laws or administrative action which interfere with this freedom contrary to the constitution a mandate. Our Constitution does not use the expression 'freedom of press' under Article 19. But it is declared by the Supreme Court that it is included under Article 19(1)(a) which expresses freedom of speech and expression (See Brij Mohan v. State, 1950 SCR 605 AIR 1950 SC 129 and Bennett Coleman & Co. Ltd. v. Union of India, AIR 1973 SC 106: (1973) 2 SCR 757). No doubt publication of articles critical of the Government may be irritant or a threat. Governments are sometimes prone to take recourse to different "means to suppress such newspapers. "Over the years Governments in different parts of the world have used diverse methods to keep the press under control They have followed carrot-stick methods. Secret payments of money, open monetary grants and subventions, grants of lands, postal concession, Government advertisements, conferment of titles on editors and proprietors of newspapers, inclusion of press barons in cabinet and inner political councils etc. constitute one method of influencing the press. The other kind of pressure is one of using force against the press. Enactment of laws providing for precensorship, seizures, interference with the transit of newspaper and demanding scrutiny deposit, Imposition of restriction on the price of newspapers, on the number of pages of newspapers and the area that can be devoted for advertisements, withholding of Government advertisements, increase of postal rates, imposition of taxes on newsprint, canalisation of import of newsprint with the object of making it unjustly costlier etc. are some of the ways in which Government have tried to interfere with freedom of press". It is with a view to checking such malpractices which interfere with free flow of information, democratic constitutions all over the world have made provisions guaranteeing the freedom of speech and expression laying down the limits of interference with it. It is, therefore, the primary duty of the courts to uphold the said freedom and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.
20. Discriminatory allotment of Government advertisements to different newspapers of the same category by the State Government will impair the freedom of press and will therefore be violative of Articles 14 and 19(1)(a) of the Constitution of India. That being the position the contention that this court in such case is not to exercise jurisdiction as the matter has been pending before the Press Council is not tenable. We, however, find that the Government's stand is that no such discriminatory order has been passed and yet the volume of advertisements sent to the petitioner newspaper has been tapering. It is also the Government's stand that several months of the year are yet to elapse and at this stage this contention that there has been discrimination against the petitioner's publication and deprivation and its quota;is futile. To our mind, these two averments are contradictory. If all the class-I newspapers were to be given equal business in respect of advertisements and while in case of others the volume is not tapering but in case of the petitioner newspaper it is tapering, discrimination is writ large on the statistics. The fact that no specific order has been passed cannot be accepted as a reasonable answer of explanation. If the State is true to its avowed policy of equal distribution of its advertisements, it should see that the policy is translated into action in letters and spirit. As admittedly the policy as to equal distribution of the Government advertisement among newspapers of the State belonging to the same category, we do not find any discrimination in the policy itself; but we find that there has been discrimination in implimenting the policy. We accordingly direct the State Government to see that the avowed policy of equal distribution of its advertisements is carried put by its agents and servants and to take such measures as to sincerely and faithfully carry out its own policy of equal distribution of newspaper advertisements insofar as the petitioner newspaper is concerned.
21. Insofar as the other allegations, made in this writ petition are concerned, as the press council is already in seisin of those matters also we leave the petitioner to pursue its remedies before the press council in that regard.
22. In the result, with the above directions and observations this petition is disposed of. We, however, make no order as to costs.
23. I agree.