This article is written by Shivani. A. This is an exhaustive article analysing the case of Indian Express Newspapers (Bombay) vs. Union of India & Ors. This case is a landmark judgement pertaining to the right to freedom of speech and expression provided under Article 19(1)(a) of the Indian Constitution. This article provides the brief facts of the case, the issues involved, the judgement of the case, and the rationale behind the judgement. It also deals with the important provisions of the law as well as case laws referred by the judges while delivering the judgement.

It has been published by Rachit Garg.

Introduction 

“Freedom of the press is a precious privilege that no country can forego.”- Mahatma Gandhi.

In India, it is widely believed by the people that the media plays an important role as the fourth pillar of democracy. Therefore, the people expect that the media will always broadcast the facts without any fear or pressure from the government. An essential requirement for the media to function in such a manner is that it is granted the freedom to publish and express its views freely without any dominance from external factors. A bare perusal of Article 19(1)(a) of the Constitution of India helps us understand that the Constitution does provide for the freedom of speech and expression. However, it does not expressly mention that this right also encompasses the freedom of the press or media within its ambit and hence, this issue of whether the media can claim its right under Article 19(1)(a) has been time and again brought up before the courts. However, the issue is now clear as the courts have clarified that the freedom of media is also a fundamental right under the said Article. 

In the instant case, the Supreme Court was posed with a challenge to strike a balance between the duty of the government to levy taxes and the right to speech of the media, and the court was successful in establishing this balance. It was held by the court that the freedom of the media to express its views is not hindered merely by the imposition of tax by the government. It further stated that the government is definitely entitled to impose a tax on the press, however, it should make sure that it does not impose any undue burden on them. In other words, the court held that the government should not use its power of taxation to silence the press. Therefore, this article provides an overview of the facts of the case, the issues involved, the cases relied upon by the Supreme Court while delivering the judgement and also the rationale for the judgement.

Details of the case

Case name: Indian Express Newspapers (Bombay) vs. Union of India

Case number: 1986 AIR 515

Equivalent Citations: 1985 SCR (2) 287, 1985 SCC (1) 641

Acts involved: The Customs Act, 1962, the Customs Tariff Act, 1975

Important provisions: Article 19(1)(a), Article 19(1)(g), Article 14 of the Constitution of India, Section 13(2) of the Customs Act, 1962

Court: Supreme Court 

Bench: Justice E.S. Venkataramaiah, Justice O. Chinnappa Reddy, Justice A.P. Sen

Petitioners: Indian Express Newspapers Ltd.

Respondents: Union of India & Ors.

Judgement Date: 6th December 1986

Facts of Indian Express Newspapers (Bombay) vs. Union of India & Ors.,1986 

Earlier, the government of India did not levy any kind of tax or import duties on the newspapers. However, in the year 1985, the government decided to impose import duties along with other auxiliary duties on the newspapers which were imported from abroad. Because of this decision of the government to impose tax on the newspapers, the publishers had to increase the price of the newspapers. This led to a decrease in the circulation of the newspapers, which in turn decreased the revenue of the company. Therefore, the employees, shareholders, etc. of the newspaper trust filed a petition before the Supreme Court challenging the constitutionality of the tax. The petitioners requested the court to declare the tax as unconstitutional as it violated their freedom of speech and expression, while the respondents argued that it was their duty to levy tax on the newspapers.

Laws involved in Indian Express Newspapers (Bombay) vs. Union of India & Ors.,1986

Constitution of India

Article 14 of the Constitution

This Article provides the principle of equal treatment under the law. This Article consists of 2 important phrases: ‘equality before law’ and ‘equal protection of law’. The phrase ‘equality before the law’ means that all people irrespective of their gender, caste, creed, etc. must be treated equally by the government.

The second phrase, ‘equal protection of law’ acts as an exception to the first phrase. This clause is based on the principle that ‘equals must be treated equally’ and enables the government to discriminate and provide special facilities to disadvantaged groups. However, the government cannot discriminate and provide facilities to people as per its whims, instead, the government must classify the people who shall avail the benefit and such classification must be reasonable. Further, the government must classify the people in order to achieve some kind of objective.

In this case, the government had classified the newspaper companies into small, medium and big companies and the petitioners contended that such classification was unfair and was against Article 14. However, the court. After referring to this Article held that the classification was reasonable and was not against the right to equality.

Article 19(1)(a) of the Constitution

This Article provides for the right to freedom of speech and expression of a person. This Article provides the right to the citizens of the country to speak and express their thoughts freely, however, they can be restricted by the government in certain situations given under Article 19(2) of the Constitution.

Article 19(2) gives power to the state to impose reasonable restrictions on the freedom of speech of the people. The restrictions can be imposed on the citizens when a person makes a statement:

• against the sovereignty and integrity of India,
• against the security of the State,
• which tends to affect the relations of the country with other foreign countries,
• which tends to disrupt the public order,
• which is indecent or immoral,
• which amounts to contempt of court,
• which tends to defame another person,
• to incite violence.

The petitioners in the instant case contested that the imposition of tax by the government violated their right to freedom of speech and expression. Therefore, the court referred to Article 19(1)(a) and observed that though freedom of press has not been expressly mentioned in the Article, it can be implied from the language of the Article. The court therefore held that the right to freedom of speech and expression also includes the right to press.  

Article 19(1)(g) of the Constitution

This Article provides for the citizens the right to practise any trade, profession, or business. It states that all individuals have the right to decide the career that they want to pursue without any limitations from the government. However, the Constitution also gives power to the State to impose reasonable restrictions on this right under Article 19(6). The State can restrict this right under the following circumstances:

• The State can make a rule as to the qualifications required for employment in any organisation and can thereby prevent a person who does not have the desired qualification from getting employed in that particular organisation.
• The State has the power to monopolise any trade or business to be dealt with exclusively by the State corporations and prevent any citizen or a group of citizens from carrying out such trade or business.

The petitioners also contested that the respondents violated their right to freedom of trade. This is because the imposition of tax by the government led to a decrease in the revenue of their company. To ascertain the claim of the petitioners,the court referred to Article 19(1)(g) of the Constitution and held that the imposition of tax did not violate the right to trade of the petitioners. 

The Customs Act, 1962

Section 13(2)

This Section gives power to the Central Board of Indirect Taxes and Customs to release a notification in the Official Gazette to fix the tariff values for any goods or class of goods which are imported to India or exported from India. After the board fixes such value, the duty shall be chargeable with reference to such tariff value. The government utilised the power conferred under this provision to levy taxes on the newspapers,

Issues raised

1. Whether the imposition of import duties on the newspapers violates the right to freedom of speech and expression of the petitioners guaranteed under Article 19(1)(a) of the Constitution.
2. Whether the categorisation of newspapers by size violated the right to equality under Article 14 of the Constitution.

Arguments of the parties

Arguments of the petitioners

• In this case, the petitioners argued that the government violated their right to speech and expression under Article 19(1)(a) of the Constitution as the tax levied by the government led to a decrease in the circulation of their newspapers.
• The petitioners claimed that the government violated their right to trade under Article 19(1)(g) of the Constitution. As the government had imposed a tax on the newspapers, the petitioners had to increase its price. Many people refused to purchase the newspapers at a higher price, which led to a decline in the revenue of the newspaper company.
• Further, they also contended that the reason for which the government decided to levy tax on the newspapers was because the government wanted to restrict the speech and expression of the petitioners and also because they wanted to prevent the general public from accessing the information published in the newspapers. 

Arguments of the respondents 

• The respondents argued that the government had no intention to restrict the freedom of the press. Instead, they contended that the tax was levied in view of public interest and to increase the revenue of the government. 
• The government also contended that the tax levied was reasonable and also argued that it had the duty to levy tax under the Constitution.

Judgement in Indian Express Newspapers (Bombay) vs. Union of India & Ors.,1986

The Supreme Court ordered the central government to reconsider the tax policy imposed on the newsprint. It also declared that the imposition of tax on the newspapers did not violate the freedom of speech and expression of the press. The court tried to strike a balance between the duty of the government to levy taxes and also the freedom of the press under Article 19 of the Constitution. The court held that the taxes imposed should be reasonable, which should not impose any sort of burden on the newspapers. It also assured that it would make sure that the power and freedom of the media would not be crippled due to the imposition of tax by the government.

Issue wise judgement of the case

Whether the imposition of import duties on the newspapers violates the right to freedom of speech and expression of the petitioners guaranteed under Article 19(1)(a) of the Constitution.

The petitioners in this case, contested that the government of India had imposed tax on the newspapers in order to cripple the freedom of speech and expression of the press which is guaranteed under Article 19(1)(a) of the Constitution. Further, they also claimed the imposition of tax led to the violation of their right to trade under Article 19(1)(g) of the Constitution as the price of the newspapers had to be increased which ultimately led to the decrease in their circulation. They also argued that the way in which the tax was imposed under the Customs Act, 1962 and the Customs Tariff Act, 1975 led to an increase in the interference of the executive. 

Further, they also claimed that there was no need to impose tax on newsprint as the newspapers were exempted from taxation till 1985. Imposing such a huge amount of tax at once along with the inflation made it impossible for the petitioners to bear the duty imposed on them. Therefore, they claimed that since the capacity to bear the duty was one of the essentials in determining the reasonableness of a tax, the tax levied by the government was unreasonable and hereby violative of Articles 19(1)(a) and Article 19(1)(g) of the Constitution.

However, the respondents claimed that it was their duty to levy tax in the public interest and also to maintain sufficient revenue with the government. They further denied the allegations levelled upon them by the petitioners and claimed that the imposition of the levy was free from any sort of mala fide intention and argued that it was not against the freedom of speech and expression of the petitioners.

The petitioners also relied on the case of Sakal Papers Ltd vs. Union of India (1961). In this case, there was a company named Sakal papers Ltd. which was a newspaper publishing company. This company filed a petition in the Supreme Court challenging the constitutionality of the Newspaper (Price and Page) Act, 1956 and the Daily Newspaper (Price and Page) Order, 1960. This Act provided that the newspaper companies should fix the price of the newspapers based on the number of pages. It also fixed a certain space for publishing advertisements and also prescribed the number of supplements that can be published. Therefore, the company claimed that the Act was violating their right under Article 19(1)(a). In this case, the Supreme Court held that the Newspaper Act, 1956 and the Order of 1960 were unconstitutional as they restricted the freedom of press, which was against Article 19(1)(a).

Another case that was relied upon by the petitioners is the case of Bennett Coleman & Ors. vs. Union of India (1972). In this case, the question that arose for consideration before the court was whether the restrictions introduced by the Newsprint Policy of 1972-73 were constitutional. This policy introduced restrictions based on 4 criteria: 

• Firstly, when an agency already was publishing 2 newspapers, and at least one among them was a daily, they were prohibited from launching any new newspapers.
• The second restriction was that no newspaper could have more than 10 pages.
• Further, if there were less than 10 pages in any newspaper, they could increase the number of newspapers by only 20%. 
• No interchangeability of newsprint was permitted between different newspapers of the same establishment or between various editions of the same paper.

The Supreme Court, in this case, held that the government did not have the authority to impose a limit on the number of pages. This is because restriction on the number of pages to be published would not only restrict the freedom of speech of the petitioners but also affect the revenue of the petitioners due to a reduction in the advertisements which can be printed in the newspaper. This, in turn, would adversely affect the newspaper in carrying out its day-to-day activities. 

In the instant case, the judges relied upon both cases and observed that neither of the two cases was concerned with the power of the government to levy taxes on newspapers. The court also observed the newspaper industry was not expressly exempted from taxation under Entry 92 List 1 of the Seventh Schedule. 

The judges in the instant case also relied upon the First Amendment of the Constitution of the United States of America. The court observed that even though the freedom of speech in the USA was absolute, the government still had the power to levy tax on the newspapers, and the freedom of the press was not lost merely because the government had the power to levy tax on the newspapers. While considering the scope of the freedom of the press in India, the court observed that the press in India has two freedoms: 

• freedom of speech and expression under Article 19(1)(a) and 
• the freedom to engage in any profession, occupation, trade or industry. 

The court clarified that even though the government cannot levy any tax on the freedom of speech and expression, the government can levy tax on the freedom of profession, occupation, trade, and business of the press. However, the court also declared that the tax imposed must be reasonable and should be within the restrictions mentioned under Article 19(2). If the tax imposed is not within the limitations under Article 19(2), it becomes unconstitutional. Another thing that was pointed out by the judges is that the tax should be laid by the government in such a way that it does not impose any burden on the newspapers. It also held that in the instant case, the government levied customs duty on the newspapers which amounts to “imposition on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself about the world around him.”

In the context of the instant case, the court held that even though the petitioners claimed that the circulation of the newspapers had decreased, they failed to prove that the decrease in circulation was a direct consequence resulting from the tax that was levied upon the newspaper by the government. The court observed that the fall in circulation could be due to various reasons such as the rise in the cost of living, the reluctance of people to buy as many newspapers as they used to buy, bad management, change of editorial policy, or absence of certain feature writers and not necessarily due to the levy of customs duty. Therefore, since the petitioners did not succeed in proving their claim that the decrease in circulation was a result of the tax imposed by the government, the court did not quash the impugned legislation, rather, it directed the government to reconsider the tax policy and levy the tax in such a manner that it would not burden the newspapers.

Whether the categorisation of newspapers by size violated the right to equality under Article 14 of the Constitution. 

While levying the tax on the newspapers, the government had categorised the newspapers based on their size. The newspapers were classified into 3 categories: small, medium and big. The classification was based on the number of newspapers which were circulated by a particular company. If a company circulated less than 15,000 newspapers, the company was considered to be a small company and such companies were exempted from paying any import duties. If a company circulated 15000 and 50,000 newspapers, then that company would be considered as a medium company and had to pay 5% ad-valorem duty. Also, if the circulation of newspapers of a company was beyond 50,000, then that company was considered as a big company and had to pay 15% ad-valorem duty. It was contended by the petitioners that such classification was irrational and was against Article 14 of the Constitution. 

However, the court observed that such a classification was reasonable and had a rational nexus. This is because the small and medium companies have limited advertisements in their newspapers and thereby, the income generated by such newspapers is low. Hence, this classification was made by the government in order to aid such small and medium newspaper companies and also to promote rural readership. Hence, the court held that the classification was not discriminatory and was not against Article 14 of the Constitution.

Importance of freedom of speech and expression and freedom of press

The judges also highlighted the main social purposes served by the freedom of speech and expression. They are as follows:

• The right helps a person to attain self-fulfilment,
• It helps in understanding the truth,
• It helps an individual in the decision-making process,
• It helps in maintaining a balance between stability and social change. 

While underlining the importance of freedom of speech and expression, the Court observed that the Government should be more cautious when levying taxes on matters concerning the newspaper industry than when levying taxes on other matters.

The court also held that “the freedom of press is the heart of the social and political intercourse.” The judges explained that the role played by the media is significant at present, as people make use of media for formal and informal educational purposes. Newspapers serve as an important means of spreading information among people belonging to all sectors of society as other forms of media such as television cannot be accessed by the people belonging to the deprived classes as they are expensive. The only solution that they have to access information is the newspapers. Therefore, the court explained that the government should consider all these points while levying the tax on newspapers and make sure that the tax levied is reasonable.

The court also observed that the newspapers also play an important role in publishing facts and opinions. It also observed that the newspapers also have the power to influence public opinion and they often publish articles criticising the government. Such articles tend to act as a threat to the government and the governments naturally try to suppress the views of such newspapers through different means.

Precedents referred in Indian Express Newspaper vs. UOI (1986)

Romesh Thappar vs. State of Madras (1950)

Facts of the case

In this case, the state of Madras had banned the publication of a journal named ‘Crossroads’. This is because the journal contained certain articles which criticised the government and were against Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949. Therefore, the petitioner, who was the editor and publisher of the journal, filed a petition in the court claiming the Section to be violative of his right to speech. 

Issue of the case

Whether Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 violates the right to freedom of speech and expression of the petitioner. 

Judgement of the case

In this case, the Supreme Court observed that the right to freedom of speech and expression also includes the freedom of press. It also observed that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was in violation of the freedom of press and hence declared it to be unconstitutional. 

Brij Bhushan vs. State of Delhi (1950)

Facts of the case

In this case, the name of the petitioner was Brij Bhushan Sharma. He was the editor and journalist of a newspaper called “Swatantra Bharat’”. In this newspaper, he had published an article in which he criticised the government. He was therefore charged with sedition under Section 124A of the Indian Penal Code, 1860 and was thereby detained by the police. (The term ‘Sedition’ has been removed from the new Bharatiya Nyaya Samhita, 2023 (BNS) and has been replaced with the term ‘Act endangering sovereignty, unity and integrity of India’ under Section 152 of the BNS.) However, Brij Bhushan Sharma contested that this was against his right to speech and hence filed a petition in the Supreme Court.

Issue of the case

Whether the detention of the petitioner merely for criticising the government violated his right to freedom of speech and expression.

Judgement of the case 

In this case, the Supreme Court observed that the right to freedom of speech and expression was not an absolute right and could be subject to reasonable restrictions. The court also observed that a speech that was seditious in nature could be restricted and, thus, held that the petitioner’s right to speech was not violated.

Analysis of the judgement in Indian Express Newspaper vs. UOI (1986)

This judgement of the Supreme Court can be considered to be a landmark judgement pertaining to the freedom of press. This is because the way in which the Supreme Court interpreted Article 19(1)(a) in the instant case is commendable. The court rightfully refused the contention of the petitioners that the tax levied by the government would lead to a violation of their fundamental right to speech and expression. Further, the court also made sure that the government does not misuse its power to impose tax by levying unreasonable tax on the newspapers by declaring that this power of the government was subject to judicial review.

The court also observed that, just because the government had the power to levy taxes under Entry 92 List 1 of the Seventh Schedule, it does not mean that it was outside the scope of judicial review. In this way, the court assured the petitioners that their right to speech would be protected and also made sure that the government was not deprived of its power to impose tax on the newspapers. The instant case is of significant importance and has served as a basis of various subsequent Supreme Court cases. In the case of Anuradha Bhasin vs. Union of India (2020), the Supreme Court relied on the judgement given in this case and held that the action of the government to prohibit the people of Jammu and Kashmir from accessing the internet was invalid and against Article 19(1)(a). The court also stressed that the restrictions on the fundamental rights of a citizen such as the right to freedom of speech and expression cannot be made arbitrarily and in secret. 

Conclusion 

Hence, in view of what has been stated hereinabove, it can be concluded that the decision of the Supreme Court in the case of Indian Express Newspapers (Bombay) vs. Union of India is just and proper. It can also be considered a landmark judgement pertaining to Article 19 of the Constitution. This is because the court explained the scope of the freedom of speech and expression which is available to the press. Apart from that, it also made sure that the judgement did not cause any hindrance to the government in the exercise of its obligation to levy taxes on the newspapers. Thus, this judgement serves as a perfect balance of the rights of the press as well as the obligation or duty of the government. 

References

• Indian-Express-Newspapers-Bombay-Pvt.-Ltd.-and-Others-v.-Union-of-India-UOI-and-Others-1986.pdf (ijlsi.com)
• The fourth pillar of Indian Democracy: Freedom of the Press (ipleaders.in)
• ARTICLE 19 (1) (a): FREEDOM OF THE PRESS: Bennett Coleman & Co. v. Union of India on JSTOR

---

Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/lawyerscommunity

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.