Express Newspapers v. Union of India

Introduction

Working journalists are, indeed, a group of their own and should be listed separately from the other staff of the newspaper institutions, and there was nothing racist in that if the State had passed laws to improve their terms of work. Thus, they may be selected for unfair treatment over the other staff of the newspaper establishments. Classification of this sort could not fall into the limits of the prohibition of Art. 14. The only thing forbidden under this Article is the individual. Membership in a social group or class should not be handled unfairly.

Facts

1. In this case, several petitions were filed by the newspaper publishing industries, and all the petitions filed by the several petitioners followed a familiar pattern and a common concern.
2. Initially, India’s newspaper industry did not start as an industry but began as individual newspapers founded by leaders in the national, political, social and economic spheres. Over the last half-century, however, the characteristics of the profit-making industry, in which large industrialists invested money and combined control of several newspapers across the country, have also become a unique feature of this development.
3. The working journalists except for the comparatively large number that was found concentrated in the big metropolitan cities, which were scattered all over the country and for the past ten years and more agitated that some means should be seen by which those working in the newspaper industry were enabled to have their wages and salaries, their dearness allowance and other allowances, their retirement benefits, their rules of leave and conditions of service, enquired into by some impartial agency or authority, who would be empowered to fix just and reasonable terms and conditions of service for working journalists as a whole.
4. The Government of Central Provinces & Berar made an initiation. It appointed an Inquiry Committee to examine and report on some questions regarding the general working of the newspaper industry in the province, including the general conditions of work affecting the editorial and other staff of newspapers, their emoluments including dearness allowance, leave, provident fund, pensionary benefits, etc.

The Committee report

1. The committee came up with the position of the journalist, stating that-

“A journalist occupies a responsible position in life and has powers which he can wield for good or evil. It is he who reflects and moulds public opinion. He has to possess a certain amount of intellectual equipment. He should have attained a certain educational standard without which it would be impossible for him to perform his duties efficiently. His wage and his conditions of service should therefore be such as to attract talent. He has to keep himself abreast of the development in different human activity fields in such technical subjects as law and medicine. This must involve constant study, contact with personalities and a general acquaintance with world’s problems.”

2. It also considered that a minimum wage should be paid to a journalist. It also thought about the potential effect of such a minimum wage. It was not regarded as unlikely that the fixing of such a minimum wage would make it difficult for small papers to continue to exist as such, but thought that if a newspaper could not afford to pay a minimum wage to a worker who would allow him to survive decently and with dignity, that newspaper had no business to ex-works.
3. It also proposed a specific dearness allowance and a city allowance, in compliance with the position of the places in which the working journalists were employed. Also considered the applicability of the Industrial Dispute Act but the said argument was opposed in the case of Patna High Court V. N. N. Sinha v. Bihar Journals Limited[1] It came to the conclusion that working journalists did not fall under the concept of a worker as it was at the time in the Industrial Disturbances Act, nor could any doubt be asked about them by those who were, admittedly, controlled by the Act. It then considered the matter of appointment date and the minimum period of notice for the termination of jobs of working journalists, the hours of work. Provision for leave, health payments and gratuities, made a range of suggestions and recommended regulations on the management of the newspaper industry, which should set out its recommendations with respect to the time of notice, the bonus, minimum wages, Sunday rest, leave, and provident fund and gratuity.

Contentions

• Petitioner

1. The vires of the Act was challenged on the ground that the provisions thereof were violative of the fundamental rights guaranteed by the Constitution under Art. 19(1)(a), Art. 19(1)(g), and Art. 14; but in the course of the arguments before us another Article, viz., Art. 32 was also added as having been infringed by the Act. It is a fundamental right of the petitioners herein as to the right to carry on any occupation, trade or business.
2. The Act imposes unreasonable restrictions on the freedom to carry on business:

• • In empowering the fixation of rates of wages on criteria relevant only for fixation of minimum wages;
  • In empowering fixation of wages, the grant of gratuity and compensation without making it incumbent on the Board to consider the significant factor of the capacity of the industry to pay;
  • In authorising the Board to take into account not what is applicable to the fixation, but what the Board finds necessary for that reason.
  • In providing for a procedure that does not compel the Board to stand by the rules under the Industrial Disputes Act, 1947, thus permitting the Board to follow any arbitrary procedure violating the principle of audi alteram partem.
  • It was also proclaimed by the petitioner that the implementation of the decision would be beyond the capacity of the petitioners and would result in their utter collapse.

3. It was further argued that the limitations put on newspaper institutions under the provisions of the challenged Act were not fair in so far as they would have the effect of destroying the company of petitioners and would thus have violated the limits of the law allowed under Art. 19. (6).
4. Whether tax on knowledge, people’s right to know the imposition of tax government to be more cautious.
5. The Wage Board therefore had the power and jurisdiction to set the rate of wages and to make a retrospective procedure of its decision, and that the financial condition of the petitioners was not such as to contribute to their bankruptcy as a result of the effect of the terms of the challenged act and the decision of the Wage Board.

• Respondent

1. They stated that none of the fundamental rights guaranteed under Art. 19(1)(a), Art. 19(1)(g), Art. 14 and Art. 32 were infringed by the impugned Act, that the functions of the Wage Board were not judicial or quasi-judicial, that the fixation of the rates of wages was a legislative act and not a judicial one
2. On the other hand, the learned counsel for the respondents urged that the very constitution of the pay boards is counter to the basic theory of jurisprudence, which postulates that no man should be a judge in his case.
3. An attempt was made on behalf of the respondents in the course of the hearing to show that by converting the currency into naye pyse and the newspapers charging to the public higher price because of such conversion, several newspapers’ income had appreciably increased.

Judgment

1. The media industry was a class of its own. The sale price of its commodity was typically below its cost of production. Moreover, the cost of production, particularly that of the newsprint, continued to vary. The constant increases in the price of the newsprint made it impossible to prepare and pursue some long-term commitment to rising spending.
2. In the present case, the Court established that in substance, the impugned Act was designed to facilitate the working conditions of journalists; neither the “intention” nor the “proximate effect” of the legislation was to abridge the freedom of speech. The feared consequences of a fall in circulation, the seeking of governmental aid etc. were only “incidental “, and “would be remote and depend upon various factors which may or may not come into play.” They were neither “direct” nor “inevitable.” Hence, the 19(1)(a) challenge failed. (Paragraphs 218 – 219)
3. It is, without doubt, true that if there were any clause to be found in the challenged act which prohibited the Wage Board from providing reasons for its decision, it could be construed as implying that the order thus given by the Wage Board could not have been a speaking order and that the petitioners could never have had recourse to a writ of certiorari in that name. It is also true that even the Court would be powerless to redress the grievances of the petitioners by issuing a writ like certiorari and the fundamental right which a citizen has of approaching this Court under Art. 32 of the Constitution would be rendered worthless.
4. The appeals were therefore subject to the judgement just handed down by us in Petition No. 91 of 1957 & Ors., and the appellants will be entitled to make a complaint in both of them that the ruling of the Pay Board is ultra vires the Working Journalism (Terms of Service) and the Miscellaneous Provisions Act, 1955, and thus invalid and inoperative.

Analysis

1. Those who ran the newspaper industry believed that bypassing such an enactment; their free labour rights had been messed with. The Act was then contested on the grounds of interference by the government with the press’s freedom. The key provisions of the Act in question were set down in Section 8 to Section 11, which accounts for how the rates of pay and processes for working journalists are set.
2. This case referred to Article 19(1)(a) of the Constitution of India, which is freedom of speech and fair limitations under Article 19(2) of the Constitution of India. The Supreme Court ordered the Central Government to review its tax policies in order to determine if it would overburden the newspapers. The petitioners claimed that, because of the import tax, the price of the newspaper was bound to rise, and the distribution of the same would decrease.
3. The Supreme Court was of the opinion that the government can place taxes on publishing, but that it does not infringe its freedom of speech within the fair limits set out in Article 19(2). The Court also held that, because both the complainant and the respondent refused to show the disproportionate existence of the levy, it is now the government’s responsibility to review the tax scheme.
4. Tax liabilities need not be excessive: In this case, the Supreme Court acknowledged that neither the petitioners were able to assert the undue tax burden, nor the respondents could counter it properly. It claimed that the “strict burden of proof” could not be discharged, given the risk of conflict with fundamental rights. The Court ordered the government to re-examine the tax scheme by deciding whether it was an unfair burden on the newspapers. The government’s opinion that such concern was irrelevant was erroneous and, thus, the notification had to be amended taking this aspect into account.
5. The payment of set-aside salaries and allowances, the management of their hours of service and the fixing of the rates of their wages following those of other workers in the newspaper institutions could also be made without any such impairment. The machinery for setting their pay rates by establishing a salary board for that reason could even be conceived in the same manner.

Conclusion

A possible principle is provided in the case of Indian Express Newspapers v. Union of India. Responding to a challenge to an import duty placed upon newsprint, the Court differentiated between those general taxes or duties that would require newspapers to make an equal contribution to the exchequer as other individuals and businesses in a similar position, and those that imposed a fiscal burden over and above such assistance. It was argued that enforcing such a duty on the newsprint would have an effect on price and distribution and, in the end, would have an impact on both the freedom of speech and the freedom to exercise some trade or profession under Art 19(1)(a) and Art 19(1)(g) respectively. It was argued that splitting the newspaper into small, medium and big newspapers would be ultra vires of the provision of non-arbitrary rule under Art 14 of the Indian Constitution, which is equality before the law.

In Indian Express Newspapers, the petition was allowed; perhaps then, the conclusion that is to be drawn, on a combined reading of all these cases, is that by framing a “direct effect” test, the Court has essentially distinguished between interferences with the freedom of speech and expression and background conditions within which that freedom must be exercised. Two of those background conditions seem to be an unregulated marketplace and general legislative provisions dealing with taxation and rationing of newsprint applicable across the Board. Whether all these cases provide a coherent principle for determining what is to count as a background condition, and what is to count as an infringement remains, at best, unclear.

The Court upheld its earlier opinion that the Act was a beneficent statute meant to govern the conditions of service of working journalists and that it had no effect on the removal or suspension of the freedom of speech and expression of the petitioners (employers) and thus did not infringe Article 19(1)(a) of the Constitution. The Court also held that the Act did not contravene the provisions of Article 19(1)(g) of the Constitution in the light of the test of reasonableness set out therein. As regards the alternative challenge to the constitutionality of the Statute, the option of working journalists to offer preferential treatment is in breach of Art. 14, as it is not an appropriate designation as allowed in the preceding Article, of the Court of Justice.

It was held that the newspaper industry should be regarded as a different class.

References:

[1] [1953] I.L.R. 32 Pat. 688