This article is written by Gargi Lad. The article provides a detailed analysis of the landmark case of B.P Singhal vs. Union of India (2010). The article further elaborates on the facts of the case, issues, as well as the arguments made by both parties. It refers to various committee reports and forms a critical analysis of the case. The article also looks into the rationale behind the judgement and future implications of the case. It delves into the powers bestowed upon the President and how the same should be exercised with regards to the removal of the Governor. 

Introduction

Governors, usually called the nominal heads of the State, are individuals who represent the State before the Central Government. The role that a Governor plays is quite vital for maintaining balance between the states and the Centre. A Governor is appointed by the President, but he is not an employee of the centre. He works for the State. However, his functions are of such a nature that they work for both the Centre and the State. There is no master-servant relationship between the President and the Governor, even though the Governor’s appointment was made by the President.

The B.P. Singhal vs. Union of India (2010) case laid down a list of binding principles and a skeleton for what the doctrine of pleasure is, by comprehensively interpreting Articles 155 (appointment of Governor) and 156 (term of office of Governor) of the Indian Constitution. The case upholds constitutional principles and limits the President’s powers granted by the Constitution itself. Since the phrase “pleasure of the President” was interpreted in manners favouring the President, the Court set a framework via this case, regarding when the Governor would be removed by the President and what the term would be otherwise. The interpretation of the doctrine of pleasure here was narrowed down by the courts to avoid misuse and arbitrariness.

Details of the case

Name of the case

B.P. Singhal vs. Union of India 

Parties

Petitioner: B.P. Singhal

Respondent: Union of India

Court

Supreme Court of India

Case Type

Civil Original Jurisdiction

Constitutional Bench

Chief Justice K G Balakrishnan, Justice P Sathasivam, Justice B Sudershan Reddy, Justice R. V. Raveendran and Justice S H Kapadia

Date of Judgement

May 7th, 2010

Citation

2010 6 SCC 331

Background of the case

Governor

A Governor is the nominal head of a State, who has the role of overlooking the functioning of the State and its organs. He works in accordance with the advice of the council of ministers. The Governor is a vital link between the State and the Centre, as he reports directly to the Central Government, raises any concerns that the State has with the Centre, and is the face of that State. According to Article 153, every State ought to have a Governor. However, there exist certain exceptions wherein two states have one common Governor, such as Mr. Devanand Konwar, who served as a Governor for both Bihar and West Bengal.

Governors are appointed by the President and their term of holding that public office is mentioned under Article 156. According to Articles 155 and 156 of the Constitution of India, the President appoints the Governor for a period of five years and the Governor holds office only at the pleasure of the President. The responsibility of nominating a Governor for each state has been given to the Central Government. It is pertinent to note that the office of the Governor is an independent constitutional office and the Governor does not work under the Union Government. 

Qualifications of the Governor- Only a person who is an Indian citizen and has completed at least 35 years of age is eligible to become a Governor, as per Article 157 of the Indian Constitution. It is important to note that the Governor should not be a member of the House of Parliament or the House of Legislature and should not hold any other office of profit. 

Resignation by the Governor- The Constitution also lays down that the Governor holds office at the pleasure of the President. According to Article 156(2), the Governor can resign from his office by writing to the President of India.

Committee Reports

Sarkaria Commission

This Commission was also known as the Commission on Centre-State Relations. It was established to distribute powers and responsibilities amongst the State and the Centre and to avoid any interference that may lead to disputes between them. The Government of India set up this Commission in 1983, with the aim of overseeing and recommending changes that were needed for the proper functioning of both Central and State Governments and enhance their efficiency by effectively distributing their powers. The chairman of this Commission was R.S. Sarkaria, along with two other members, namely, Shri B. Sivaraman and Dr. S. R. Sen. 

The Commission observed that in cases where there is an unstable State government, a state emergency is proclaimed. Here, the Governor plays a role of high importance and impact. These scenarios highlighted that a Governor played important roles in maintaining Centre-State relations and adequately exercising the powers given to him. Further, the Commission separately dealt with Governors under Chapter 4 of the report, which delved into the appointment, removal, significance and role of the Governor, in detail. The Commission recommended the following to remove an aspect of partiality in the actions of the Governor towards the centre and to maintain a harmonious relationship between the State and the Centre:

•  A Governor shall be an eminent individual from outside the State.
• He shall not be actively involved in any kind of local politics.
• He shall not have been an active part of any recent political acts.

Along with this, the Commission received a list of suggestions regarding what the removal process for the Governors of each state could be:

•  Inquiry by the Supreme Court
•  Investigation into his conduct by state committee
•  Process similar to that of a Supreme Court judge
•  Impeachment  

The removal of a Governor cannot be done in the manners stated above, as a Governor is a member of the executive and dispenses multifaceted functions. His powers are diverse and he works for both the Union and the State. The committee gave its recommendation on the list given above, stating:

• There can be no inquiry held by the Supreme Court for the decision to remove a Governor, as this involves interference by the judiciary in the functioning of the executive. If the inquiry is held by the Supreme Court, the decision might be of a nature that is in favour of the judiciary.
• State committees might have a negative bias towards the Governor if it is assumed that a Governor dispenses functions for both the Union and the State. The state committee might find the Governor to be biassed and in turn, remove him from the post.
• Removal processes similar to those of a Supreme Court judge cannot be followed, as the functions, role and power of a Supreme Court judge and that of a Governor are completely different and thus the procedure for the removal of both cannot be the same.

The Commission, in further paragraphs, also mentioned that the Governor shall not be removed without giving any adequate reasons or grounds. He shall be given a guarantee of serving for the term defined in the Constitution of India, which is, 5 years, to serve the country impartially. As under Paragraph 4.7.08 of the report, the Commission stated clearly that the term of the Governor shall not be disturbed by anyone until a rare and compelling reason exists. Once they believe that such reasons exist, the Union shall lay a statement before both houses of Parliament, and the Governor shall be given a chance to be heard and to show cause against his removal.

Venkatachaliah Commission

The Commission was established in the year 2000. It was also known as the National Commision to review the working of the Constitution and was headed by former Chief Justice of India Justice M.N. Venkatachaliah. Soli Sorabjee and B. P. Jeevan Reddy were some of the members of this committee. It aimed to establish a fair appointment procedure for Governors and also accurately determine his/her role.

The Governor of any state shall be appointed by a committee composed of the Prime Minister, the speaker of the Lok Sabha, the Home Minister and the Chief Minister of the State where the Governor is being appointed. Governors should be allowed to complete a 5-year term. If any removal has to take place, the Central Government shall do it with advice from the Chief Minister. The role of the Governor is to act as a friend, philosopher and guide to the State Government and to use the discretionary powers bestowed on him in rare cases only. He or she shall not interfere in the daily administrative functioning of the State.

Punchhi Commission

This Commission, established in 2007, consisted of Justice Madan Mohan Punchhi (former Chief Justice of India), as chairman. Some of the notable members were Mr. Dhirendra Singh (former Secretary to the Government of India) and Mr. Vijay Shankar (former director of the Central Bureau of Investigation) as member secretary. The Commission, in the report submitted in 2010, recommended that the phrase “during the pleasure of the President”, be deleted from the provision altogether, as it was deemed to be violative of the Governor’s right to hold the post and also prevents him from exercising his duties properly. It implies that a Governor can be removed at any time at the will of the Central Government, and this may impact his decision making power, since he might be biased towards making decisions as per the Union Government’s ideas. The Commission laid down a solution for this, in its further recommendations- it suggested that the removal of the Governor may instead happen by way of a resolution in the State Legislature, as it would ensure stability in his term as Governor and would also be fair, rather than arbitrary. His decision making power would not be impacted.

Doctrine of pleasure

Scope 

The Privy Council, in the case of Shenton vs. Smith (1895), highlighted the importance of the doctrine of pleasure. The Council stated that this doctrine holds a lot of importance because, in the absence of it, the removal of a civil servant who might have a negative effect on the State, would become difficult. 

This doctrine was also upheld in the case of Dunn vs. Queen (1896). The Court was of the opinion that civil servants have no fixed tenure and the Crown may decide their term or tenure on the basis of its discretion. The Crown has the right to exercise its discretionary power with regards to the term, as the servants work under it and hence shall work in accordance with its rules. If that is not the case, the civil servant may be terminated from the post, and his tenure would end there. The Court also referred to the common rule and was of the opinion that because such public servants are employed for public good, such employment should be determined by the Crown itself. However, in certain exceptional circumstances, for the welfare of the people, certain restrictions could be imposed on the powers that were given to the Crown.

History of the doctrine of pleasure

In India

The President is considered to be the head of the Executive Union and holds the same position as that of the Crown. Hence, the President has been given the power to remove a civil servant under the doctrine of pleasure. Similarly, a civil servant of the State is considered to work at the pleasure of the Governor.  It is pertinent to note that even though this doctrine is followed in India, it was accepted only after certain modifications were made to the original concept as introduced in England. 

In England

As the East India Company entered India, they brought the concept of the doctrine of pleasure along with them. It is derived from the Latin phrases, durante bene placito and durante bene placito regis, which mean “during good pleasure of” and “during good pleasure of the King” respectively. Any decision that was made by the King could not be questioned because he was considered to be the representative of God. Even after independence, this doctrine was considered important, as English law still has a major impact on the Indian legal system. It states that the employees of the Government are similar to the civil servants of the Crown. The application of the same can be seen during the appointment and termination of posts of the Government wherein members are chosen as per the discretion of the Union Government, and removed as per the will of the President.

Facts of B.P. Singhal vs. Union of India (2010)

B. P. Singhal, a former member of the Parliament, filed a public interest litigation under Article 32 (remedies for enforcement of rights conferred by this Part), which highlighted the need for interpretation of Article 156 of the Constitution of India, which deals with the term of the Governor. On the advice of the Union Council of Ministers, the President of India, on July 2, 2004 removed the Governors of four states- Uttar Pradesh, Haryana, Goa and Gujarat. The petitioner sought a writ of certiorari for quashing the removal of the four Governors by the President of India and also a writ of mandamus in order to allow the Governors to complete their remaining terms.

Issues raised

1. Whether the petition is maintainable?
2. What is the scope of doctrine of pleasure?
3. What is the position of the Governor as per the constitution?
4. Whether there are any express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution?
5. Whether the removal of Governors in exercise of the doctrine of pleasure is subject to judicial review?

Laws Involved in the case

Article 156 of the Indian Constitution

Article 156 was discussed and interpreted comprehensively in this case. The doctrine of pleasure, as stated under this provision, was interpreted by the Court, in a manner that does not involve granting unlimited power to the President.

Article 156(1) of the Indian Constitution

Clause (1) concerns itself with how the term of the Governor shall be operative at the “pleasure of the President.” When there is a mention of the doctrine of pleasure, it can be seen that this provision gives the President unlimited power to remove the Governor from his office, without any reasoning, on the mere basis of his wish. This shows an absolute use of power by the President, over the public office of the Governor and how the Centre controls the State Government. The provision lacks words such as, “on reasonable grounds” or “with proper reasoning.”

Article 156(2) of the Indian Constitution

This provision states that a Governor may resign from his office, by writing to the President.

Article 156(3) of the Indian Constitution

According to Article 156(3), the Governor’s term would be five years, which is equal to the term of the President. This provision is also an implied provision of the doctrine of pleasure, as the Governor shall continue to hold the office until the term of the President is in place.

Article 32 of the Indian Constitution

This provision is also called the heart and soul of the Constitution, by Dr. B.R. Ambedkar, as Article 32 provides for protection against actions of the State, that lead to violations of the fundamental rights of the people. The right to Constitutional remedies as guaranteed under Article 32 itself is a right, and hence a writ petition arising out of a violation cannot be denied by the Apex Court. Under Article 32, the aggrieved, whose fundamental right is violated, can approach the Supreme Court and seek remedy for the violation. The remedy can be sought through a writ petition, and as the article states, there are five types of writs that one can file before the Supreme Court of India:

• Mandamus
•  Habeas corpus
• Certiorari
• Quo warranto
•  Prohibition

An aggrieved person is usually the one who files a writ petition in the Supreme Court, but this can also be done by a person who is not a complete stranger to the case, such as a relative or a friend of the aggrieved, in situations of habeas corpus. Writs can also be filed in the public interest and are called public interest litigations. They are a collection of writs filed for the same cause or subject matter. In this matter, writs of mandamus and certiorari, were filed against the Central Government for the removal of four Governors, of the states of Haryana, Goa, Gujarat and Uttar Pradesh.

Article 74 of the Indian Constitution

Article 74 of the Indian Constitution delves into the duty of the Council of Ministers. The President is required to act on the advice of the Council and take their aid when it comes to necessary decisions made for the functioning of the government. The Council of Ministers shall advise the President on all matters and the President shall exercise his powers in accordance with the advice received. In cases with respect to removal of Government posts and removals from public offices, the Council shall advise the President regarding the same and he may then take further action by exercising the power given to him under the Constitution.

Arguments of the parties

Petitioners 

Maintainability of the petition

The petitioners asserted that the petition is maintainable, while relying on the judgement of S.P. Gupta vs. Union of India (1981), The court in this case, answered the question of whether a petition against public injury exists and who could file the same. The court opined that there might be an injury to the public interest (also termed a public injury) when the State or a public authority acts in violation of a constitutional obligation. Any member acting bona fide for the benefit of the public and having interest in the case may file a petition and maintain action for redressal. 

Scope of doctrine of pleasure

Regarding the term of the Governor, the petitioner was not adamant on an irrevocable tenure, but contended that there should be certainty in the term, in order to let the Governor efficiently discharge his duties. Constantly keeping the Governor under the threat that he may be removed from his position by the President, may make him a servant of the Union Government, as he would constantly try to be in the good books of the President to avoid his removal. There ought to be certain fixed rules regarding the removal of the Governor. 

Position of the Governor

The Governor is considered to be a very crucial part of the legislature of a State. The Governor, also called the head of the State, holds high constitutional values and duties. Each and every action that is taken by the government is taken in the name of the Governor. All the bills that are passed by the House of Legislature, are passed by the Governor before it becomes a law. The Governor generally is known for carrying out crucial constitutional functions. One of the major functions of the Governor is to act as a link between the Union Government and the State Government. When required, he also acts as an umpire who is unbiased and takes decisions on behalf of the State.

The fact that he is appointed by the President and holds his term according to the President’s pleasure, does not make him a servant of the Union and he is not accountable to the Union for any actions that are taken by him during this term. They also contended that his post is not subordinate to that of the Union and that his office as Governor, is independent. They stated that there are certain norms that should be followed in order to remove a Governor. The norms are as follows:

• Norm 1- Removal can take place only when the Governor is deemed to be unfit.
• Norm 2- Informing the Governor regarding the removal.
• Norm 3- Judicial review of the removal.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India 

It was argued by the petitioner that there are certain restrictions under the doctrine of pleasure. There is a clear difference between Article 75(2), Article 76(4) and Article 156(1). Articles 75 and 76 provide for no restrictions on the doctrine of pleasure and Article 156 lays down certain restrictions on the same. The petitioner also interpreted the two provisions of the Constitution and opined that although the Governor holds office for five years, before expiry, he can resign voluntarily or be removed by the President. The most important restriction is that no employee shall be dismissed until and unless an inquiry has been made and the employee has been informed about the charges. The petitioner relied on the Report of the Sarkaria Commission on Centre-State Relations to support his arguments that removal can only be done after reasons for the same have been mentioned.

Removal of Governors in exercise of the doctrine of pleasure is subject to judicial review

It was contended that in a democracy where the rule of law prevails and there is no supreme authority beyond the Constitution, nobody has unlimited powers, and the removal of a constitutional post like that of a Governor is subject to judicial review. According to the rule of law, all powers vested in authorities by the Constitution should only be used for the public interest. Any order of removal of the Governor before his term ends shall be subject to a review.

To summarise, the petitioner sought three reliefs from the Court. Firstly, they sought a direction to the Union Government, to produce documents and files that form the basis of the order passed by the President on July 2, 2004. They also sought a writ of certiorari to quash the removal of the four Governors, and lastly, a writ of mandamus to allow the said four Governors to complete their terms.

Respondent

Maintainability of the petition

The respondents argued that the petition must be held as non-maintainable, since the aggrieved party did not approach the court for relief. They relied on the S.P. Gupta vs. Union of India (1981) judgement for the same, citing that the complaint of a member of the public, for a secondary public injury, cannot be maintained if the specific group of persons who are primarily injured, do not claim any relief. Hence they contended that Mr. B.P. Singhal had no locus standi to maintain this petition on behalf of the concerned Governors who were removed from office. The Governors belong to a respectable and known part of society and are not individuals deprived of the ability to seek relief and hence, a petition on their behalf shall not be held to be maintainable. 

Scope of doctrine of pleasure

The respondent was of the clear view that the Governor shall hold the office at the pleasure of the President and his removal shall not be due to a reason, such as, the Governor is unfit to hold the post or there exists corruption, etc. The Governor can be removed from his post at any time, as per the discretion of the President. This is because the President is the head of the country and he gets to choose and appoint a Governor of his choice for the betterment of the states and the proper functioning of the country. This upholds the concept of doctrine of pleasure, by stating that if and when situations of loss of confidence or lack of trust arise, a President has free will to remove a Governor from his post and terminate his office with immediate effect. The act of doing so, upholds the principles of the English law. There, it is the rule of the Crown that prevails, and here, it is the will of the President.

Position of the Governor

The respondent maintained a strict opinion that the position of the Governor in the country and a State, is that of an employee of the Union Government and that he does not hold any individual post that is independent of the government. They stated that the Governor ought to be in sync with the ideas and ideologies of the Union Government and hence, shall be removed if his ideas do not match that of the Union Government. The Governor is a person who imagines what a State must be like, and acts in a way that benefits the State government. However, the Governor also acts under the President, as the State and the Union government must work in symphony. Hence, his ideas shall be in consonance with those of the President. If the President finds any discrepancy in his opinions or finds that his ideas have no sync with the ideas of the Union, he may terminate him from the post of the Governor. The Governor relies on the confidence laid in him by the President. In case there is a loss of confidence in the Governor, the President may terminate him from his position.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India

The respondent argued that the Governor can also be removed if there is a loss of confidence in the Governor or if the ideologies of Governor and the Union Government do not match. As Article 156 clearly states, he shall hold the post at the pleasure of the President. There are no limitations on that power. They stated that ministers also hold posts as per the pleasure and discretion of the President and the same shall be applied to the post of Governor in the interest of the public.

Removal of Governors in exercise of doctrine of pleasure is subject to judicial review

It was put forward by the respondent that the removal of a Governor takes place by order of the President. The order depends on the discretion of the President, who forms his opinion based on the advice that is tendered to him by the ministers. As per the provisions of the Constitution of India, the aid and advice given by the ministers cannot be inquired into, by any court of law. This is where the doctrine of separation of powers comes into play, and hence, judicial review of a President’s action shall not take place.

Judgement in B.P. Singhal vs. Union of India (2010)

Rationale behind the judgement

Maintainability of the petition

The Court relied on the case of Ranji Thomas vs. Union of India (1990), in which a public interest litigation was filed for intervening to restrict the President of India from extracting resignation of various Governors. The court in this case had held that the Governors who were asked to resign, had not contended against it. Hence, the petitioner cannot challenge or protest the decision of the President because the party that had been affected, had no intention to challenge the same in the first instance. The court minutely observed and heard arguments from both sides and decided the case. However, it must be noted that though the aggrieved Governors had not approached the court to challenge their removal, the petition was still maintainable on the grounds that it gave rise to a public injury or harmed the public interest. The court couldn’t deny the fact that the public’s interest was at stake and merely because the aggrieved hadn’t challenged their removal, the petition couldn’t be sidelined. 

Scope of doctrine of pleasure

The Court relied upon varied cases that interpreted the need, scope and significance of the doctrine of pleasure to decide on the scope of this doctrine that would be applicable in the current times. 

The Court referred to the State of Bihar vs. Abdul Majid (1954) case, which upheld the doctrine of pleasure. The case dates back to 1954 and dealt with the English principle that civil servants are bound to a term as per the pleasure of the Crown and that they cannot enforce any special contract that states the opposite. However, the Supreme Court in the current matter also looked into whether a civil servant could file a case against the State or the Crown, for recovery of arrears of his rightful salary, as he held office at the pleasure of the Crown/State. The Court was against this principle and stated that it would not be applicable to India.

The Court interpreted the doctrine of pleasure by distinguishing between how the pleasure of the President is used among three sets of public posts and how the doctrine is applied with or without restrictions. Further, looking at the constitutional debates, it can be seen that varying levels of protection against the removal of servants were adopted.

• At the pleasure of the President (absolute power without restrictions)- applies to ministers, Governors, Attorney General and Advocate General.
• At the pleasure of the President (with certain restrictions)- applies to members of the defence and civil services, holders of posts connected to the civil or defence of the Union.
• No doctrine of pleasure applies to the President, Judges of the Supreme Court, or of High Courts.

Position of the Governor

The position of a Governor was described specifically in the case of State of Rajasthan vs. Union of India (1977). The Governor is considered to be the constitutional head of the State and is also a channel of communication between the Union and the State. Additionally, the Governor is bound by the advice given to him by the Council of Ministers. However, the Governor is also given certain discretionary powers, which allow him to act independently. One of the independent functions he performs is making reports to the Union Government. He is also required to supervise the working of each organ of the government in the State.

The status of a Governor was also discussed in the case of Hargovind Pant vs. Dr. Raghukul Tilak (1979). It was held that the Governor is not an employee or a servant of the Government, even though he is appointed by the President. It is not necessary that every person employed by the President is an employee of the Government. For the above mentioned reasons, the Governor is also not accountable for the way in which he carries out his functions. The office of the Governor is not subordinate to that of the Government of India. The Governor, being the head of the State, has the authority to approve state legislations and also holds powers related to the executive. 

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution of India

The Court relied on the petitioner’s contention regarding the removal of a Governor, which was based on the Report of the National Commission to Review the Working of the Constitution and the Report of the Sarkaria Commission on Center-State Relations. The Court observed that the security of tenure of a Governor and a Supreme Court Judge is different, due to a difference in the scope of position and work. The Commission recommended that the Governor cannot be removed without a cause shown. The Commission also stated that the grounds for removal should be communicated to the Governor before he is terminated from his post. The Court relied on the above stated Commission findings to decide on this matter. 

Application of judicial review to the removal of Governors in exercise of doctrine of pleasure 

The Court referred to the case of R. Bancoult  vs. Foreign Secretary (2008). This case was related to an appeal against the judgement, which held Section 9 of the British Indian Ocean Territory to be invalid. The judgement was delivered by a Divisional Court and was further upheld by the Court of Appeal. In the appeal, the court held that on principles of rationality and legality, judicial review of the exercise of prerogative power can take place.

Further, the Court turned towards Epuru Sudhakar vs. Government of Andhra Pradesh (2006). In brief, a person was accused of murdering a political opponent and hence, was awarded the death sentence. The Governor had granted him pardon, but the Supreme Court quashed this pardon and stated that any pardoning power of a Governor can be quashed if such decision has been made on the basis of caste or religion. The Court, while deciding on the current case, was of the opinion that the subject matter is the main factor which determines whether prerogative power is subject to judicial review or not. The basic factor of evaluation of every decision is rule of law and every prerogative power should be subject to it. Prerogative power should only be exercised in a manner which is fair and certain. 

The Court also cited the cases of State of Rajasthan vs. Union of India (1977) and Kihota Hollohon vs. Zachilhu (1992). Questions were raised regarding the validity of the Tenth Schedule of the Indian Constitution. The court ultimately held that anti-defection laws do not violate any free speech rights. It was observed that regardless of any finality clause, the courts have the power to determine whether the actions of the authority are ultra vires the powers that have been vested in them. Any action which is malafide or is in contravention of any mandatory provision can be considered to be ultra vires.

Issue-wise judgement

Maintainability of the petition

The petitioner had no locus standi for relief being sought from the court. However, he had sufficient locus standi for maintaining his writ petition with regards to the scope of Article 156(1) and the doctrine of pleasure. 

Scope of doctrine of pleasure

In the current scenario, the use of this doctrine is different from the use of the doctrine of pleasure in earlier times, and there ought to be a distinction drawn between the two. The doctrine is used in democratic situations in a country like India, where the rule of law prevails over everything and the government has no right to act as it pleases or in an arbitrary manner. 

This doctrine is not a licence given to the government to act according to its whims and fancies. The doctrine shall be exercised in the interest of the public only, since this is a discretionary power. The Court was of the opinion that in India, the power to use the doctrine is not absolute and unfettered, but rather moderately restricted by the provisions present in the Constitution itself. Article 310(2), Article 311(1) and Article 311(2) contain the restrictions imposed on this power, so as to avoid any arbitrariness.

Direction given by the Court regarding the provision containing the term “at the pleasure” has no express limitations on the same and shall be read in accordance with the fundamentals of constitutionalism. There shall exist a valid reason to exercise the power, like in the public interest and not as per the mere wish of the Government. Along with this, the Court established that the degree of need for giving a reason for removal may vary depending on the circumstances of the case, but the need for giving a reason always exists.

Position of the Governor 

Since the initial stages of the establishment of the Constitution, the State and Centre had the same political parties in power. However, this has changed with time. The emerging concept of coalition politics has changed this view, wherein the regional parties share power along with the Union. The Court hence opined that the role of the Governor is that of a dual nature. The Governor, firstly, is the constitutional head of the State when he acts in accordance with the advice tendered by the Council of Ministers. Secondly, he also functions as a link between the Centre and the State. In some situations wherein the circumstances are such that the Governor is expected to discharge a function that he does not always discharge, he may step into the shoes of a special representative of the Union Government. However, this neither makes him the servant of the Union, nor the agent who discharges functions on behalf of the party holding majority.

Express or implied limitations/restrictions on the power given under Article 156(1) of the Constitution

There is no instance that shows that clause (1) of Article 156 is treated with any express limitation or restriction, and it is not accepted that clause (1) is subject to any express restriction imposed by clause (3). Removal of offices of ministers or the Attorney General of India, without any restriction, is permitted, as the intention of their office is to serve society, and when they assume office, they are made aware that their post is subject to the pleasure of the President. This is possible because the relationship between a President and the minister is purely political and different from the relationship between the President and the Governor. Reasons like loss of confidence in the Governor or his ideologies not being in support of those of the Union, cannot be used as reasons for his removal from the post of Governor, that is, because the Governor is an independent individual and not a servant of the Union. Ministers who have a different approach or idea than that of the Union might be harmful, as the primary purpose of their appointment is to serve the Union and be in sync with their ideologies. 

Application of judicial review to the removal of Governors in exercise of doctrine of pleasure 

There is a vast difference between the need for a cause and the need for disclosure of that cause. Courts have a limited power of judicial review in such cases. The Court elaborately identified situations wherein they can interfere in the removal of Governors, and when they cannot. In instances where the President has provided reasons for the removal of the Governor, the court can interfere if the reason that the President has provided is irrational or irrelevant. In cases where there is no reason provided by the President for the removal of the Governor from his post before his term ends, the court has a limited power of judicial review. The power can be exercised when the decision of removal is deemed to be either arbitrary, discriminatory or malafide. The extent of the power to excuse judicial review depends on the matter. Grounds like loss of confidence in the Governor cannot  be held as valid grounds and hence, would require judicial review.

Analysis of B.P. Singhal vs. Union of India (2010)

The case of B.P. Singhal vs. Union of India (2010) highlights that the President, without giving any reason or justification, can remove the Governor from his post. On the other hand, this case also lays down that the removal of the Governor should not be unreasonable. This creates a loophole, as the President can state any reason for the removal of any such Governor and whether his actions were reasonable or not depends on the facts of each case. This loophole also creates a situation wherein the President might get away with the decision that was made for such removal, even when it was not justified. 

This case has failed to provide clarity with respect to the burden of proof. Ideally, the President should prove that his decision was justified and not biased towards a political party. Instead, the Governor has been asked to prove that the removal was malafide. The right to be heard, which is an important aspect of natural justice, is also violated in case the President removes the Governor without any justification. Further, when the President removes the Governor, it also narrows down the court’s power of judicial review, as the President is not bound to give any reasons for the removal. It is also pertinent to note that such an act forces the Governor to please the President while performing his duties.

The laws in India are heavily influenced by the laws already existing in England. However, more clarity regarding when and how to use the doctrine of pleasure, is required. The major difference here is that India runs on a democratic system, whereas England doesn’t. Democracy on its own creates a responsibility to act for public good and interest and hence, the constant use of the doctrine of pleasure might not really be well suited for India.

Further implications of the case 

Rajendra Prasad Baudh vs. State Of U.P. Thru Secy. Housing And (2016)

The Court in the case of Rajendra Prasad Baudh vs. State of UP Thru Secy. Housing and Urban Planning (2016), also applied the principles that were laid down in the case of B.P. Singhal vs. Union of India (2010), which held that while exercising its power of nomination, the Government also has the power to exercise its discretion, but such discretion is not unfettered. The Court held that they would not interfere just because a different view of the action taken is possible. Any interference would only be done by the Government when the action taken is malafide or arbitrary in nature and absolutely requires interference.

Sunny K. George vs. State Of Kerala (2016)

In the case of Sunny K. George vs. State of Kerala (2016), the court referred to the case of B.P. Singhal vs. Union of India (2010), which has already discussed what amounts to the pleasure of the government and what does not. The petitioner also referred to this judgement, where it was laid down that the doctrine of pleasure as it existed a few years ago, and the doctrine that exists along with the concept of the rule of law, are very different. It was also held that this doctrine does not allow any authority to act arbitrarily. However, the court was of the opinion that a nomination of a member of a syndicate and the appointment of a Governor, as discussed in the B.P. Singhal case, are not the same.

Union Of India And Ors vs. Major S.P. Sharma And Ors (2014)

B.P. Singhal vs. Union of India (2010) was referred again in the case of Union of India And Ors. vs. Major S.P. Sharma and Ors. (2014), wherein the court discussed that in a place where rule of law exists, there does not exist a concept of unaccountable actions. This case discussed and held that the doctrine of pleasure does not give a person the power to remove a person from his post without any valid reasons. It also upheld that judicial review cannot be removed completely, but the degree of scrutiny may vary in different cases.

Conclusion

This landmark case of B.P Singhal vs. Union of India (2010), sums up how the power given to the President is discretionary and shall be used sparingly in rare and special circumstances, wherein the continuation of the office might lead to harm to the public interest. The Court clearly highlighted that the Governor is the Constitutional head of the State and should not work for the benefit of a political party. The case also gives clarity on the fact that the President has the power to remove the Governor at any point in time, but such removal should not be unlawful or unreasonable. Such removal can only take place in exceptional circumstances. Further, because the post of the Governor is a non-political one, he cannot be removed merely because the cabinet does not have faith in the Governor or if there is a change of Central Government. This case also points out that the burden of proof to show that his removal was arbitrary and malafide, is on the Governor.  This case clarified varied doubts regarding the exercise of power granted to the President, as well as the use of the doctrine of pleasure.

Frequently Asked Questions (FAQs)

What is a public interest litigation (PIL)?

It is a case filed for the protection of the interests of the public at large, wherein a significant number of people’s interests are at stake. Such interests can be pecuniary or constitutional. PILs are extensions of writ jurisdictions and hence, can be filed before either the Supreme Court or any High Court.

What is the writ of Mandamus?

Mandamus means “we command.”. This writ is issued as a command by a superior court to an inferior court or an individual holding a public office to perform its official duties or to correct any act that was an abuse of the discretionary power given to them.

What is the writ of certiorari?

Certiorari means “to be made more certain.” The writ of certiorari is used by a higher or superior court to review the cases tried in the lower courts. The higher court investigates such matters and further passes its opinion on them. It can quash any order passed by a lower court or also transfer it to any other judicial authority for consideration.

What is the doctrine of pleasure?

According to this doctrine, at any given point in time, the Crown has the power to terminate the services of a civil servant without any proper notice of termination. This is because it is considered that civil servants work at the pleasure of the Crown. If the Crown feels that keeping a civil servant is against public policy, then the Crown has the power to remove them.

Who is a Governor?

A Governor is the nominal head of the State who has the role of overlooking the functioning of the State and its organs. He is a vital link between the State and the Centre, as he reports directly to the Central Government, raises any concerns that the State has with the centre, and is the face of that State.

What are the roles and functions of the Governor?

The role of the Governor is to act as a friend, philosopher and guide to the State government and to use discretionary powers bestowed on him, in rare cases only. The Governor takes decisions for the State and acts in representative capacity for the State.

Does the Governor have the power of exercising his pleasure?

The Governor of a State is granted powers under Article 310 of the Constitution, wherein he can remove a person holding the post of  civil service under the State or any civil post in the State, if he deems that person to be unfit for the post. This is when he may exercise his pleasure in determining who is capable of holding the post and who is not. Exercising his power in this manner, is the right way to exercise the power granted to him and the correct use of the doctrine of pleasure. He may not be compelled to give reasons for the removal of that person, as it is his discretion to keep a person in that post or not.

References

• https://www.lawcolumn.in/doctrine-of-pleasure-under-indian-constitution/
• https://www.insightsonindia.com/2019/09/17/insights-into-editorial-all-the-Presidents-men/ 

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This article is written by Arya Senapati. It attempts to analyse the facts, issues, arguments, judgements, and other finer points related to the case of Bennet Coleman v. Union of India (1973), which is a landmark case on freedom of the press in India. It also attempts to analyse the legal provisions, principles, and developments in the field of press freedom in India. 

Introduction

In recent times, it has been common to come across headlines regarding the poor performance of India on press freedom indices maintained by global organisations. Many on the western side of the world view India as a nation that curbs its press freedom by imposing multiple restrictions, and they continue to voice their concerns over it. While the truth of the matter is debatable, it is essential to revisit the history of freedom of the press in India to understand its importance and significance in today’s world. The Constitution of India, by virtue of Part III, guarantees certain fundamental rights to its citizens. Article 19(1)(a) is a fundamental right that specifically addresses the freedom of speech and expression. It guarantees the liberty of free speech and expression to all citizens with reasonable restrictions based on the interests of the sovereignty and integrity of India, 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. 

These restrictions are imposed in matters of severe necessity and should not be imposed casually so as to allow complete realisation of fundamental rights. Every fundamental right has been interpreted by courts to include many others under its ambit. Freedom of speech and expression is a broad right that encompasses the freedom of the press. Therefore, free speech and free press are constitutional guarantees that ensure that every citizen gets their information from free sources. It also implies that the press shouldn’t have to compromise on their integrity and transparency due to undue interference from political elements. Free will is very important for a healthy democracy to function efficiently. These freedoms also include the power to criticise the state’s actions on reasonable grounds, to lay allegations against political parties and their representatives for misconduct, and to ensure that citizens are aware of all these occurrences so as to enable them to vote and choose their representatives wisely. 

Many political parties and representatives do not take such criticisms fairly and resort to force or undue pressure to control the voice of the press and get away with their actions. Thereby misleading the masses and controlling the way information is spread or disseminated. Therefore, it is highly important to preserve the sanctity of the media, as it is referred to as the fourth pillar of democracy or the watchdog of democracy. The term watchdog simply means that it oversees how democracy is protected or hampered by the actions of people and creates awareness regarding the same to protect the essence of democracy from being diluted in any manner. It is, therefore, the prerogative of the state to ensure non-interference when it comes to the press exercising its freedom to report an incident as it is. Owing to this ideology, there have been many cases in India regarding the protection of fundamental rights of the press. The most prominent one was Bennet Coleman v. Union of India (1973), which heralded an era of activism towards press freedom. Therefore, it is important to revisit this case while studying the freedom of the press in India.

Details of the case

1. Name of the case: Bennett Coleman and Co. & Ors. v. Union of India
2. Name of the petitioners: Bennett Coleman and Co., The Hindustan Times Ltd., The Indian Express
3. Name of the respondent: Union of India
4. Citation: AIR 1973 SC 106
5. Date: 30.10.1972
6. Court: Supreme Court of India
7. Bench: S.M. Sikri, A.N. Ray, P. Jaganmohan Reddy, K.K. Mathew, and M. Hameedullah Beg
8. Statutes referred: Constitution of India: Article 14, Article 19, Article 32; Import Control Order, 1955; Imports and Exports Control Act, 1947; Newsprint Control Order, 1962, Essential Commodities Act, 1955.

Facts of Bennett Coleman vs. Union of India (1973)

• The petition was filed challenging the import policy for newsprint for the years 1972-1973, which was impeached as a consequence of the case as it was infringing upon the fundamental rights, i.e., Article 19(1)(a) and Article 14 of the Constitution of India. Certain provisions of the Newsprint Control Order 1962 were also challenged as they were violating Article 19(1)(a) and 14 of the Constitution. 
• The primary impugned legislation that was challenged was the Import Control Order, 1955, passed under the Imports and Exports Control Act, 1947. This legislation dealt with import restrictions on newsprint. The sale, acquisition, and consumption of newsprint within the country were controlled by the Newsprint Control Order, 1962, which was passed under the validity of the Essential Commodities Act, 1955, which was also challenged.
• The order stated that no consumer, other than an importer, should be able to acquire newsprint without the authorisation of a controller, and no consumer must consume newsprint more than the quantity set by the controller. 
• It also stated that no consumer of newsprint other than the publishers of textbooks or any books shall be allowed to use any kind of paper other than newsprint without the written permission of the controller. 
• The Newsprint Policy of 1972-73 was also imposed, which stated that:

1. The entitlement of every newspaper towards newsprint shall be determined based on its level of consumption by considering the average circulation or average page area in the years of 1970-71 or 1971-72, whichever is less. This shall not apply to daily newspapers that had more pages than an average of 10 in either of the years given. 
2. For daily newspapers that had a circulation of up to 100,000 copies, the policy allowed a 10% increase over the basic entitlement of importing newsprint, and a 3% increase over the basic rights of imported newsprint was allowed for daily newspapers with more than 100,000 copies.
3. No new newspapers were allowed to be initiated by media houses that already owned more than two newspapers, at least one of which was a daily newspaper.
4. The total number of pages in a newspaper was not allowed to be more than 10.
5. The increase in the number of pages for newspapers with less than 10 pages should be less than 20%.
6. The newsprint limit cannot be interchanged between establishments or between different editions of the same paper. 

These restrictions and policies severely affected media houses, who are the petitioners in this case, mainly three media houses: Bennett Coleman and Co., The Hindustan Times Ltd., and The Indian Express, as they led to the following consequences: 

• The petitioners were restricted from making adjustments to circulation as the newsprint policy made restrictions on the same. The adjustments were restricted even if they were within the limits imposed by the policy. This was challenged as a violation of Article 19(1)(a) of the Indian Constitution. 
• It was the feeling of the petitioners that such a restriction would curtail the growth of big newspapers, and the fixation of a page limit hampers the right of media outlets to print news comprehensively, thereby curtailing their freedom of speech. 

The three leading media houses therefore approached the Supreme Court of India by virtue of a writ petition under Article 32 of the Constitution of India to protect their right to free speech and expression. 

Issues raised

1. Can the petitioners, being corporate entities, invoke the protection afforded by fundamental rights?
2. If Article 358 of the Indian Constitution serves as a bar to challenge the petitioners on violations of fundamental rights?
3. If by imposing restrictions on newsprint import, the state is violating Article 19(1)(a) of the Indian Constitution?
4. Is the newsprint policy valid, and does it fall under clause 5(1) of the Import and Control Order of 1955?
5. If clauses 3 and 3A of the 1962 Newsprint Order are violative of Article 19(1)(a) and Article 14 of the Indian Constitution?

Petitioner’s arguments

Violation of freedom of speech and expression, i.e., Article 19(1)(a)

The first and foremost argument raised by the petitioners was that the provisions of the Newsprint Control Order and the Newsprint Policy are deemed to be imposing unreasonable restrictions on the circulation of the newspapers. Such restrictions on page numbers, the limit on importing newsprint, and others are unreasonable and violative of Article 19(1)(a), which protects and safeguards the fundamental right to speech and expression, and by imposing such restrictions, the government is trying to curb the free speech that the newspaper publishes. These restrictions, as per the petitioners, are a major obstacle to their right to freely disseminate any idea, information, or knowledge and therefore are violative of Article 19(1)(a) of the Constitution of India. 

Violation of the right to equality before law (Article 14)

The second argument raised by the petitioners is that by setting newsprint import allocation quotas, the state is trying to establish differential treatment. It is an established principle that wherever differential treatment exists, there must be some reasonable classification to justify such treatment so as to reasonably restrict the application of the right to equality and equal treatment. The petitioners further state that such a quota is violative of Article 14, i.e., the right to equality as a reasonable classification does not exist to justify the differential treatment afforded to newspaper publishers by imposing quota limits. They further state that the arbitrary allocation of quotas results in government newspapers being more favoured and independent ones falling on the disadvantageous side. There is no legitimate state interest to justify such an allocation of quotas, and such discriminatory practices lead to an uneven playing field in the newspaper industry, thereby violating the right to equality. 

Distortion of competition in the media industry

The petitioners further argued that by the existence of arbitrary allocation of quotas, certain publishers find themselves in an advantageous position as compared to others who suffer from such a restriction. This creates a stifled competitive atmosphere, which hinders the progress of pluralistic voices and the diversity of opinions offered by independent newspapers. 

Monopolistic control over newsprint

The petitioners believe that the provisions of the policy and order attribute monopolistic control of newsprint to the state, and such monopolistic control leads to an unfair competitive market and prevents the growth of a diverse media, which is necessary for a diverse democracy like India to function effectively. 

Inapplicability of Article 358

The petitioners argued that Article 358 would stand inapplicable to this case as it generally is not applied to law or executive action that has been taken prior to the proclamation of an emergency. As per the petitioners, the newsprint policy is an old policy that has continued on a year-to-year basis until the proclamation of an emergency in 1971. 

Newspaper control policy

The petitioners argued that the newsprint control policy is actually a newspaper control policy as it hampers the circulation of newspapers, and the existence of a newspaper control policy is violative of the Import Control Act and Import Control Order and thereby ultra vires. The counsel for the petitioner also argued that the prevention of adjusting the newsprint quota within common ownership units is also violative of free speech and that the newsprint policy doesn’t fall under the ambit of Clause 5(1) of the Import Control Order of 1955 and therefore is not validly legislated. 

Inequitable distribution

The petitioners stated that, firstly, the prohibitions will not increase circulation but rather decrease it consequentially. Secondly, equating larger English dailies with smaller dailies, which require less than 10 pages, almost negates the idea of equitable distribution and exhibits an unreasonable and discriminatory treatment towards daily newspapers. 

Notional circulation

The petitioners contend that the quotas, in reality, are not based on the actual circulation of the newspapers but are rather based on the notional circulation, i.e., the circulation with permissible increases year on year will not correspond to the permissible circulation on which the quota was originally based. Therefore, creating an unreasonable method for the allocation of quotas can lead to the extremely arbitrary imposition of limits on newspapers. 

Respondent’s arguments

Corporate status of the petitioners

The first and primary argument of the Additional Solicitor General, who represented the respondents, was that the petitioners are companies, and fundamental rights as enshrined in the constitution only apply to citizens, who are human individuals, and therefore, they cannot afford the protection of fundamental rights enshrined in Part III of the Indian Constitution. 

State of emergency

The second contention raised by the Additional Solicitor General was regarding the maintainability of the petition. He stated that the petition is not maintainable as Article 358 of the Indian Constitution prohibits the petitioners from challenging the violation of a fundamental right during a period of emergency. The respondents argued that the core principle, which is that nothing contained in Article 19 shall prevent the power of the state to carry out executive action and enact laws that it would be competent to do had there been no emergency, still holds effect, and by utilising the same power, the newsprint policy was formulated. Therefore, it is the contention of the respondents that the 1972 and 1973 Newsprint policies cannot be challenged as long as the emergency persists.

Right to import is not a common law right

The next contention raised by the respondents was that the right to import and use newsprint is not one of the common law rights but rather is a distinct right that is afforded protection by virtue of various statutes. He states that the Newsprint Order and Policy don’t affect fundamental rights, as the subject of the provisions, the effect, and the outcomes do not intend to do so, nor do they mention it. Even if it indirectly affects the fundamental right to speech, it is not the primary goal of the legislation and is therefore insignificant. 

No infringement of fundamental rights

The Additional Solicitor General representing the respondents went ahead to contend that the policy and the order do not violate fundamental rights. He relied on American principles to state that the right to a free press stays unaffected until the rights of the citizens are not infringed, and in this case, the impugned legislation doesn’t affect the rights of the citizens in any way. The respondents also argue that they understand that monopolistic attitudes in the market can lead to unfair competition and harm democracy, but they also contend that neither the order nor the policy lead to a monopolistic market, and the press is not vulnerable to monopolistic combination harm. 

Public interest necessity

The respondent argued that the Newsprint Control Order was enacted to ensure that the public interest is protected by managing the distribution and costs of newsprint, which will eventually lead to the equitable distribution of newspapers to all citizens of India and protect their right to information. The respondents also note that such restrictions can prevent a monopolistic setup in the media industry, which is harmful to citizens’ right to free and true news. They also argued that such economic measures in the form of restrictions are allowed by Article 19(6) of the Indian Constitution, as it empowers the state to impose reasonable restrictions for the interests of the public. 

International obligations 

The respondents contended that India is under international obligations under the International Covenant on Civil and Political Rights (1966), which recognises the right of the state to regulate its media for the purposes of public interest, national security, and public order. Therefore, the Newsprint Control Order and Policy rolled out by the state are consistent with its international obligations to strike a balance between the rights of the press and the interests of the general public at large. 

Judgement in Bennett Coleman vs. Union of India (1973)

The majority bench (Sikri. C.J., Ray A.N., and Jaganmohan Reddy, JJ.) delivered the following points as the judgement:

1. On the issue of whether companies can seek the protection of fundamental rights guaranteed by the Constitution of India, the Supreme Court held that, as per the precedent set by Rustom Cavasjee Cooper v. Union of India (1970) (Bank Nationalisation case), it is clear that citizens do not give away their fundamental rights when they enjoin themselves to create an association like a company. A company has its own juristic identity, is therefore considered a juristic person in the eyes of the law, and is therefore afforded the same protection of fundamental rights as any human or citizen of India. Their fundamental rights can be hampered by the actions of the state, and they deserve equal protection as other citizens of India. The rationale behind this is that the citizens are the shareholders of a company when it is formed, and when the rights of a company are violated, the fundamental rights of the citizens forming the company are violated as a consequence. Therefore, the concerns over the violation of Article 19(1)(a) by the legislation rolled out by the state in the form of the Newsprint Order and Policy are projected as the rights of the citizens who have associated themselves with the newspaper publishing company. Therefore, they have the same rights as other citizens and have the locus standi to challenge the violation of their fundamental rights through a writ petition, which is a right guaranteed to them by virtue of Article 32 of the Indian Constitution, i.e., the right to seek constitutional remedy in case of violation of fundamental rights guaranteed by virtue of Part III of the Indian Constitution. By applying the said principle, it can be rightfully said that the petition filed by the petitioners is absolutely maintainable in court of law. Especially after the ruling in the Bank Nationalisation case, the locus standi is even more solid and prominent in its position. The existence of a company doesn’t bar citizens from exercising their right to relief.
2. The next question was whether Article 358 will be applicable to the instant case or not, and as a consequence, whether a petition challenging the action of the executive or state during a period of emergency will be entertained or not. The Supreme Court stated that the current petition in question challenges the 1972-73 Newsprint Policy. This was done after the amendment to the original petition, which challenged the 1971-72 policy. Therefore, the Hon’ble Court is of the opinion that Article 358 does not bar the entertainment of petitions filed on executive actions and state actions when they are a continuance of an action taken before the period of emergency. In the instant matter, the 1972-73 Newsprint Policy is a continuation of the policy that was initiated before the declaration of emergency. It would be unconstitutional and a violation of Article 19 if such a petition were not entertained. It would be detrimental to fundamental rights if a bar on the entertainment of the petition is taken on the basis of a law drafted prior to the proclamation of emergency. 
3. Further, the Apex Court stated that it is undeniable that the government has the power to import newsprint as well as control the distribution of newsprint amongst publishers. Therefore, the policies and orders were made with valid legal authority, and the court cannot scrutinise them unless mala fide intention appears in the formation of the legislation. The policies were therefore validly brought into application as per the opinion of the court. 
4. Opening on the interpretation of Article 19(1)(a), the court states that even though there is no explicit mention of freedom of the press under Article 19(1)(a), it has been settled through various decisions that the said article will include freedom of the press under its ambit. As per the court, the freedom of the press is a natural manifestation of freedom of speech and expression, which is an explicitly mentioned fundamental right under Article 19(1)(a). Therefore, the press has fully attributed the right to freely propagate newspapers and information, as well as their right to free circulation of newspapers without any prior restraint, which is also a well-recognised right under Article 19(1)(a) of the Constitution of India. Coming to the question of whether the law violates Article 19(1)(a), the court states that if a law is created in such a way that it singles out the press by imposing multiple prohibitions and restrictions on the same and that leads to a reduction in circulation, a reduction in the number of personnel, and obstacles in starting a new newspaper, which in turn forces the publishers to resort to the aid of the government, then in such a case the law is violative of Article 19(1)(a) and falls outside the ambit of protection offered by Article 19(2). The court also goes on to state that the American rationale and principles put forth by the respondents wouldn’t be applicable in an Indian context because the First Amendment provision of America has no such exceptions as does our Constitution under Article 19(2). Therefore, to equate both of these laws to justify the violation of fundamental rights is futile and non-maintainable. The court has established that the press has a right to free speech and expression, and no policy, especially the impugned policy in the case, can take away the said right in any manner. 
5. The court also goes ahead to state that the Newsprint Control Policy is in reality a Newspaper Control Policy, and such a policy that controls or curbs the circulation of newspapers and imposes extreme regulation on them cannot be acceptable. 
6. The court refers to its judgement in the Bank Nationalisation Case, wherein it laid a principle that stated that the court can grant relief in cases where the object of the law-making authority is not to directly violate the rights of citizens but the consequence of such a law effects in such a violation, which affords jurisdiction to the court and the court is empowered to grant relief in such situations. In the instant matter, the consequence of the Newsprint Policy is that the growth and circulation of newspapers are effectively curtailed, they are made vulnerable to financial loss, and their freedom of speech and expression is also infringed. Therefore, the court has the right to jurisdiction and the right to grant relief. 
7. In terms of Article 14, the court states that the policy is violative of Article 14 as it treats newspapers that are not equal as equals while ascertaining the requirements of the newsprint for the same. There exists no intelligible differentia, and therefore the restrictions are unreasonable as per established principles. 
8. Talking about Remark V (which sets a basic entitlement of newsprint quota for newspapers operating with more than 10 pages) of the Policy, the court says that it violates Article 19(1)(a) in the context of those newspapers operating above a page limit of 10 by restricting them to a maximum of 10 pages. The forced reduction of news pages is a violation of free speech and expression, as per the court’s opinion.
9. Moving on to Remark VII(C) (which stated that those newspapers within the ceiling of 10 pages get a 20 percent increase in the number of pages), the court states that when newspapers get a 20 percent increase under the ceiling limit of 10, they will eventually require more circulation due to demand and an increase in pages, but the effect of the policy is such that the circulation will be curtailed. Even the larger English dailies, which require a larger number of pages, are not being provided with the same, which affects their freedom of circulation. For those dailies that do not require an increase in page number, their circulation is hampered by the policy. Therefore, considering all these aspects, the newsprint control policy is in reality a newspaper control mechanism that cannot be allowed to operate. 
10. The discriminatory allocation of increase in circulation is clearly apparent in Remark VII (which stated that newspapers with less than 1,00,000 circulation have been given a 10% increase in circulation whereas those with more than 1,00,000 circulation have been given only a 3% increase in circulation), wherein, as per the Newsprint Policy, for the year 1972-72, it is clear that those newspapers with less than 1,00,000 circulation have been allotted a ten percent increase in circulation and those with more have been allotted only a three percent increase, which is a violation of the right against discrimination and the right to equality guaranteed by the Constitution of India. 
11. Coming to Remark VIII (which prevented common ownership units from adjusting  between them the newsprint quota allotted to each of them), it largely prohibits the increase in the number of pages by lessening the circulation of the newspaper. Earlier, the process of adjusting pages and circulation was allowed. The prohibition of such flexibility and adjustment leads to a reduction in the quality, range, and standards of daily newspapers, and therefore it affects the freedom of the press. The treatment of larger dailies with the smaller ones as equals leads to a clear violation of Article 14 of the Constitution of India. 
12. Ultimately, the court holds that the free press is essential for a healthy and functional democracy, and any form of action that hampers its freedom can have detrimental consequences for society. Therefore, active action must be taken to prohibit such impositions and create better avenues for press freedom.

Concurring judgement in the case

In this matter, Justice M. Hameedullah Beg also authored a concurring judgement. The notable points of the judgement are as follows:

1. The challenged state action in this case is the Newsprint Policy 1971-1972. The challenged remarks concern themselves with the import of quotas for newsprint assigned to licensees, and they have to be adhered to if the licensees want their quota, which implies that the licences could be revoked if the terms specified in the policy are not adhered to. It is alleged that the terms specified infringe upon the fundamental rights of the petitioners to express themselves freely, but if the terms of the provisions do not fall under any provision of law, the need for testing their reasonability will not arise. 
2. If a state action is termed as policy, it can only be justified if it shows the nature of a “law”. As per Article 13(3)(a), the law includes ordinances, orders, by-laws, rules, regulations, notifications, customs, and usage. The policy cannot bind citizens unless they acquire the forces of law. The intention behind the newsprint policy is to make it binding upon the petitioners to adhere to the conditions laid out in the remarks column of the policy. Therefore, they have to be brought under certain legal provisions to authorise the imposition of such binding conditions on newspapers. Such restrictions have to be removed by the court as they have infringed upon the fundamental rights of the petitioners, and the petitioners have incurred heavy losses owing to the restrictions, and they might be forced to discontinue their business if such restrictions are continued. 
3. One must over-emphasise the significance of a free press for the functioning of a healthy democracy, as it is one of the important pillars of the state. Popular sovereignty prevails in a nation only because the media has the consent of the people to remain as a functional pillar of a democracy.
4. It is a lesson from political philosophers and historians that our society has intellectually advanced only because of the existence of freedom of speech and expression. Political democracy entails that such freedoms must be protected at any cost. 
5. Even though freedom of the press is not mentioned as a separate constitutional guarantee in our constitution, it is a part of freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution. The press is an instrument for citizens to express their opinions and therefore must be afforded strong protection. 
6. Our constitution also mentions the permissible grounds on which freedom can be restricted under Article 19(2), and any state action in the shape of a law that doesn’t abide by it will infringe upon the fundamental rights of the citizens. Even when such restrictions are imposed on reasonable grounds, they must not be excessive and must not go beyond the purpose for which they are imposed. 
7. In terms of the contention regarding the power to control the licensing of newsprint under the Imports and Exports Control Act, it is to be observed that the Act certainly confers the power to determine the licence for imported newsprint, and Clause 3 of the Imports Control Order has been made in exercise of the powers conferred by Sections 3 and 4A of the Imports and Exports Control Act. On the contrary, it is worth noting that the ambit of the conditions in a licence cannot extend to determining how newsprint is utilised after it has been imported, as this would lead to control of the supply of news by means of newsprint. 
8. In this instant case, it is impossible to find out the true purpose behind the restriction imposed by the impugned Newsprint Policy. It is not necessary for the court to ascertain whether the restrictions are reasonable, as they should first possess the authority of some law to consider their effectiveness. Thereby, Justice Hameedullah Beg concurs with the judgement given by Justice Ray and decides in favour of the petitioners. 

Dissenting judgement in Bennett Coleman vs. Union of India

In this case, a dissenting judgement was authored by Justice Matthews. Some of the notable points of the judgement are:

1. The writ petitions filed before the court challenge the validity of Subclauses (3) and (3A) of Clause 3 of the Newsprint Control Order, 1962, passed by the Indian Government under the authority of Section 3 of the Essential Commodities Act, 1955, and the impugned newsprint policy 1972-73. 
2. It is important to note that the production, supply, and distribution of newsprint have been controlled since 1939, and Article 369 of the Constitution empowers the parliament exclusively to exercise such control for five years since the effect of the Constitution comes into play. Newsprint is also an essential commodity under the Essential Commodities Act. The majority of newsprint has to be imported from foreign countries, and the Indian government has restricted such imports since 1943. The imported newsprint, along with the ones produced in the country, has been proportionately divided among the newspaper publishers in India. 
3. In the years 1972-72, due to the suspension of U.S. aid, there was a decrease of 11,000 tonnes of newsprint imports, and therefore, the availability was less than in 1971-72. 
4. The contention raised by the petitioners is that the government should give higher priority to importing newsprint to meet the demand of all newspaper publishers to the greatest extent possible. This is a matter that concerns national policy and falls outside the jurisdiction of the court. 
5. Talking about freedom of the press being a fundamental right, it is worth noting that it does emanate from freedom of speech, which is guaranteed by the Constitution. It is a misconception to state that freedom of speech and expression cannot be restricted or regulated. No matter how absolute freedom is, it cannot be free from state regulation. 
6. In cases like Sakal Papers v. Union of India (1961), the infringement of freedom of speech can be directly linked to state action. In that case, the legislation directly affects the circulation of newspapers. In this instant case, the effect of the policy directly affects speech in general, but it cannot be said to directly affect freedom of speech.
7. To interpret the contention regarding the inefficacy of allotting page limits based on the circulation of a newspaper, it is worth noting that such a system will only allow the growth of various ideas from different newspapers and prevent the monopoly of big players in the market. Considering that India is a free market, any scheme that deals with the distribution of newsprint in an equitable manner would make freedom of speech more feasible and accessible to all newspaper publishers in a rational manner. This would in turn lead to a free flow of ideas into the market and help enrich freedom of speech. This observation is made in reference to the American case of Citizen Publishing Co. v. United States (1969). 
8. It is a well-settled principle, as per the decision of the Court in Hamdard Dawakhana v. Union of India (1959), that advertisements of a commercial nature do not fall under freedom of speech, and therefore, it is necessary to assume that the rationing of newsprint doesn’t affect freedom of speech directly, and therefore, there is no abridgement of the same. 
9. To look at the matter from a different angle, it can be said that the constitutional guarantee of freedom of speech in relation to the free press connotes a right to read for the benefit of the public and not for the benefit of media houses. Therefore, the present level of circulation being maintained doesn’t affect the public’s right to read and receive information but only enlarges it as they get access to more ideas from different newspapers. 
10. To talk about the adjustment of quotas in common ownership units, it is fair to note that by allowing such an adjustment, it would frustrate the entire objective of the policy in the first place, and therefore such restrictions are necessary for the successful working of the rationing system.  
11. The argument that an unregulated discretion is conferred under sub clause 3 and 3(a) of clause 3 of the Order is not sustainable, as the preamble and provisions of the Essential Commodities Act provide enough guidance for the exercise of the given powers. Therefore, the petition is dismissed without any order of costs.  

Critical analysis of the judgement

Freedom of Speech and Expression as enshrined under Article 19(1)(a) of the Constitution has been recognised as a globally significant right that finds its mention in multiple international legal documents like the Universal Declaration of Human Rights (1948). It has been sacrosanct to many evolving democracies and is deemed to be necessary for the functioning of representative democracies. Therefore, it is imminent to recognise the freedom of the press or the right of the press to free speech and expression under the ambit of fundamental rights and prevent the infringement of such rights by state actions or executive actions. Due to this principle, the judgement of Bennett Coleman v. Union of India is significant to the realm of Indian democracy as it sought to protect freedom of the press for times to come. Dissent and criticism of the government are extremely important so as to truly utilise the essence of democracy, where the voice of the people dictates all actions of their representatives in the government. 

The judgement recognised that dissent as well as the dissemination of truthful information through newspapers is important for democracy to sustain, and therefore, any action that harms the functioning or circulation of newspapers is extremely dangerous to a society and must be curbed effectively. The judgement is also significant as it heralded an era of judicial activism to protect the rights of the press. It also became a precedent that was followed in multiple cases to uphold the rights of the press through constitutional means. Therefore, the judgement serves as a landmark piece of precedent and highlight’s Indian judiciary’s commitment towards the protection of freedom of the press at a time when many western nations attacked India’s press freedom positions. To have an effective safeguard for the press in terms of protecting them from unconstitutional burdens, such a precedent is eternally significant and must be analysed thoroughly for generations to come.

Laws involved

The case of Bennett Coleman v. Union of India dealt with various legal provisions. The notable ones are: 

Article 14 of the Constitution

Article 14 of the Indian Constitution guarantees the right to equality, which extends to equality before law and equal protection of law. This right is meant to protect the existence of the rule of law in society and to ensure that each and every citizen is treated equally when it comes to the application of law and that no one citizen is treated in a more advantageous way than the other. Article 14 is available to both citizens and non-citizens who are present on Indian soil. The importance of Article 14 was upheld in the case of Maneka Gandhi v. Union of India (1978), wherein it was held that equality is a transformative concept and cannot be limited to traditional ideas and understanding. Article 14 therefore attempts to tackle the arbitrary exercise of power by that state through executive actions to protect the interests of the citizens. 

Although Article 14 talks of equal treatment, it allows the state to create certain classes for affording special or differential treatment. This is governed by the doctrine of reasonable classification, which states that whenever the state creates a class of persons, there has to be some rational connection between the creation of the class and the purpose that the legislation is attempting to fulfil. In the case of Budhan Chaudhary v. State of Bihar (1995), it was held that the classification cannot be arbitrary and there must be some reasoning behind the distinction drawn between people who fall within the class and the ones who do not. There has to be a nexus between the classification and the purpose of the legislation that is creating such a classification. The creation of separate schemes for the empowerment and upliftment of women is an instance of the creation of a class based on gender to fulfil the feminist interests of society.

Article 19(1)(a) 

Article 19(1)(a) deals with the fundamental right of freedom of speech and expression. This particular right is only available to Indian citizens and not to foreign nationals. It consists of the right to express your opinion in a free manner on any matter through any medium of your choice. For example: newspaper articles, digital posts, speeches, television, movies, art, written mediums, etc. In an ideal democracy, which runs on the active participation of citizens, it is extremely important to uphold the freedom of speech and expression. This allows citizens to constructively criticise the actions of the government that they elect to power and demand accountability and transparency in cases of deficit action. The right is, however, not absolute and is subject to certain restrictions. These restrictions are mentioned in Article 19(2), and this provision empowers the state to create legislation restricting the fundamental right to freedom of speech and expression on reasonable grounds. The reasonable grounds are “interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation, and incitement to an offence.” In the case of Union of India v. Association for Democratic Reforms (2002), it was held that the right to freedom of speech and expression includes the right to information as a fundamental right. The right to impart information as well as receive it has been recognised as a fundamental right emanating from Article 19(1)(a). 

Article 32  

While Part III of the Indian Constitution guarantees certain fundamental rights to the citizens of India, which cannot be infringed by the state unless done through reasonable grounds mentioned in the provisions present in Part III, it is also important to provide a redressal mechanism in case of a violation of fundamental rights to seek an appropriate remedy for the same. Article 32 of the Indian Constitution provides the right to seek constitutional remedies for the violation of fundamental rights by the actions of the state. Every citizen has the right to approach the Apex Court with a writ petition claiming that their fundamental right has been violated by a specific action of the state and seek remedies for such violations.

Cases preceding the decision

There have been many developments before the case of Bennett Coleman v. Union of India was decided for the courts to opine on press freedom and the fundamental rights of the press. A few of the most notable cases include:

Romesh Thappar vs. State of Madras (1950)

In this case, the Supreme Court of India dealt with the legality of prior restraint on the fundamental right of speech and expression, especially in the context of media publications and the free press. It dealt with the legality of censorship or restriction of content, specifically criticism of the government. It revolved around a magazine called “Cross Roads’ ‘, the editor of which was notable journalist Romesh Thappar. The magazine was banned in the State of Madras by the state government under the Madras Maintenance of Public Order Act, 1949. Romesh Thappar challenged the validity of such a ban and stated that it is a violation of his fundamental right to freedom of speech and expression, which is guaranteed to him by Article 19(1)(a) of the Indian Constitution. The Supreme Court held that the right to freedom of speech and expression includes and extends to the right to a free press, and if the government or the state imposes any kind of restriction on the press’s freedom of speech and expression, it should fall under the ambit of Article 19(2), i.e., it should be reasonable and rational for purposes of protecting national security, morality, and decency. Public order was later added as a ground for reasonable restriction of fundamental rights under Article 19(2) by virtue of the 1st Constitutional Amendment, 1951. The Court held that such a ban on the magazine “CrossRoads” is unconstitutional censorship and is a violation of Article 19(1)(a), and therefore the ban should be lifted. The action of the government violated the rights of the editor to free speech. 

Brij Bhushan vs. State of Delhi (1950) 

In this case, the Supreme Court dealt with the seizure of a newspaper called “Organizer” of which Brij Bhushan was the editor. The newspaper was subjected to scrutiny as it was critical of the actions of the Chief Commissioner of Delhi and its mode of administration. The newspaper was put under scrutiny by virtue of the powers conferred upon the Chief Commissioner of Delhi by Section 7(1)(c) of the East Punjab Public Safety Act, 1949. The editor challenged the decision and stated that such a seizure was a violation of his fundamental right to speech and expression and also violated the freedom of the press under Article 19(1)(a) of the Indian Constitution. The Supreme Court of India heard the matter and stated that the significance of the freedom of the press in a functioning democracy is highly important and must not be restrained in any manner. It is extremely harmful to exercise pre-censorship on news, as it would amount to a violation of freedom of speech and expression to a large extent. The restrictions imposed on such a serious fundamental right should always be reasonable and must fall under the ambit of Article 19(2) of the Indian Constitution. The court held that the arbitrary censorship of news and dissenting voices given through newspapers should be prevented, and freedom of the press must be protected at all costs. 

Sakal Papers vs. Union of India (1962)

In this case, the petitioner challenged the validity of the Newspaper (Price and Page) Act, 1956, and the Daily Newspapers (Price and Page) Order, 1960, which regulated the costs and the page number of newspapers in India. The petitioner was the publisher of a private Marathi newspaper and argued that such regulations impose restrictions that violate the freedom of the press under Article 19(1)(a), which deals with freedom of speech and expression. The petitioner stated that these laws prevent the circulation and readership of newspapers. They also argued that the right to publish and circulate newspapers is a right emanating from the fundamental rights of free speech and the free press. Therefore, they sought for such laws, which impose restrictions on press freedom, to be declared unconstitutional. The court held the laws to be unconstitutional as they violated the freedom of speech and expression and curtailed the free press. The consequences of the laws are such that they would lead to a reduction in the number of pages or an increase in the costs of the newspaper, which would in turn result in low circulation of the paper and hamper its rights. 

Cases succeeding the decision 

There have been many cases in which the judiciary has referred to the decision taken in Bennett Coleman v. Union of India to reach a decision. Some of the landmark cases which take the precedent forward are:

Printers (Mysore) Ltd. vs. Assistant Commercial Tax Officer (1994)

In this case, the Supreme Court held that no sales tax can be imposed on the sale of newspapers in India, but that doesn’t mean that the press is completely safe from taxation. It simply means that any form of state action that results in the reduction of the circulation of information through newspapers is an infringement of their fundamental rights. The Apex Court referred to its own judgement in Bennett Coleman v. Union of India and stated that newspapers have a vital role to play in propagating valid information and forming public opinion, and any sort of restriction on the same hampers the right to information of the general public. Due to the utmost significance of newspapers in a democratic nation, they should enjoy certain privileges and protection under the law. The court decided that the imposition of a sales tax on newspaper sales leads to a burden on the freedom of the press, which is protected under Article 19(1)(a), and held the tax to be violative of fundamental rights. This decision heralded an era of judicial activism to protect the freedom of the press, and the court referred to itself as the protector of press freedom and stated that no unconstitutional burden will be imposed on the press until the judiciary functions effectively. 

Indian Express Newspapers (Bombay) Private Ltd. vs. Union of India (1984)

In this instant case, the Apex Court of India dealt with the taxation policy on newspapers. The petitioners challenged the import duty on newsprint, which was imposed by the Customs Tariff Act, 1975, and the imposition of auxiliary duty under the Finance Act, 1981. Before the application of this law, newspapers enjoyed exemptions from customs duty on newsprint due to their high significance. It was contended that the imposition of such duties leads to an inconsequential effect on the costs and circulation of newsprint, affects the overall freedom of the press, and is violative of Article 19(1)(a) of the Constitution of India, which safeguards the fundamental right to speech and expression necessary for a free press. They also contended that there is no public interest in the imposition of such economic burdens on newspaper publishers, and therefore such impositions cannot be termed reasonable and justified. The court relied heavily on the decisions of Sakal Newspapers and Bennett Coleman v. Union of India and attempted to strike a balance between the tax-imposing powers of the state and the freedom of the press. The court stated that “as long as the court sits, newspapermen need not have the fear of their freedom being curtailed by unconstitutional means”. Further, the court stated that as long as the tax is within the reasonable limits of the state’s power and doesn’t contravene Article 19(2) of the Indian Constitution, it is not unconstitutional. The court directed the government that whenever it is exercising its taxation power on the newspapers, it should ensure that it shouldn’t overburden them with costs and shouldn’t encroach upon the fundamental rights of newspaper publishers. 

Conclusion

For a democracy to function effectively, citizens must participate actively. The participation of citizens is only fruitful when they have access to information that is truthful and important. Newspapers play this role in ensuring that the citizens of a democracy are well-equipped with information and use the same to make the right decisions about the functioning of a democracy. In this judgement, the courts recognised the significance of protecting newspapers from unnecessary and arbitrary interference from the government and the executive so as to ensure that their fundamental right to speech and expression is duly protected. This judgement also set a precedent, which stated that the right of the press falls well within the boundaries of Article 19(1)(a). Therefore, any restrictions imposed on the newspapers must be reasonable and constitutional. This judgement serves as a reminder of the judiciary’s commitment towards ensuring that the media remains as the fourth pillar and the watchdog of democracy in India. 

Frequently Asked Questions

Which was the legislation that was challenged in the case of Bennett Coleman vs. Union of India?

The legislations that were challenged in the instant case were the Import Control Order, 1955, passed under the Imports and Exports Control Act, 1947, and the Newsprint Control Order, 1962, which was passed under the validity of the Essential Commodities Act, 1955, which regulates the sale, purchase, and consumption of newsprint in the country.

What were the primary restrictions imposed on the newspaper publishers, and how did they infringe their fundamental rights?

The impugned legislation put forth a ceiling limit on the importation of newsprint and a number of pages of a newspaper based on the volume of circulation of the newspaper. They also prohibited the adjustment of pages and permissible limits within two newspapers of the same media company. All of this resulted in a decrease in circulation volume and prohibited the liberty of the newspapers to disseminate whatever information they deemed important due to the restrictions on the page limit, which led to the infringement of their fundamental rights. 

What was the ratio of the judgement given in Bennet Coleman vs. Union of India?

The primary principle of the judgement in this case is that freedom of the press is a fundamental right under the Right to Free Speech and Expression under Article 19 of the Indian Constitution, and any law that restricts this freedom without valid grounds mentioned under Article 19(2) would result in infringement of the fundamental rights of the press. 

What are the grounds for a reasonable restriction of fundamental rights under Article 19(2)?

The grounds on which a fundamental right can be restricted as per Article 19(2) are: “interests of the sovereignty and integrity of India, 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.”

References

• https://www.jstor.org/stable/43950191 
• https://www.scobserver.in/journal/article-19-prescription-procedure-and-the-press/ 

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