The Lawmatics Freedom of Press Series
Facts of the case
In the case, an appeal by special leave was filed against the decision of Wage board for Working Journalists published in the Gazette of India on May 11, 1957.
It was argued that, the Working Journalists Act, 1955, was ultra vires as it infringed the fundamental rights of the Petitioners guaranteed by the Constitution under Arts. 19 (1) (a), 19 (1) (g), 14 and 32. Article 19 (1) (a) which guarantees freedom of speech and expression includes the freedom of the employment of means to exercise those rights and consequently comprehends the freedom of the Press. The guarantee of an abstract freedom of expression would be meaningless unless it contemplated and included in its ambit all the means necessary for the practical application of the freedom.
If the impugned Act was viewed as a whole, it would appear that it authorised the fixation of salary of working journalists at a level which disables the running of the press. The impugned Act thus, impedes, controls and prohibits the free employment of the agencies of expression on that section of the Press which form its vocal chord and therefore the Act infringes the freedom contemplated under Art. 19 (1) (a) and is not saved by Art. 19 (2).
The Act also violates the right guaranteed by Art. 19 (1) (g) of the Constitution as it places unreasonable restraint on the petitioners’ freedom to carry on business. The law imposing restrictions on fundamental rights must be reasonable not only in its substantive content but in its procedural content as well.
The Act is discriminatory in character and violates Art. 14 of the Constitution. It gives the working journalists a more favoured treatment as compared to other employees in several ways, statutory benefits by way of retrenchment compensation, gratuity, limitation of the hours of work and leave, not enjoyed by others in comparable employments. It is restricted in its scope to a selected section of newspaper employees. it gives them the benefit of the wage fixation by devising machinery in the form of a Pay Commission without the existence of any industrial dispute, without prescribing the major criterion of capacity to pay to be taken into consideration; or following the procedure prescribed by the Industrial Disputes Act, 1947, even in disregard of principles of audi alteram partem.
The working Journalists constitute only 1/5 of the total staff employed by various newspaper establishments. If the conditions of service of working journalists were to be improved by the Wage Board the other employees who form 85% were bound to be restive and likely to raise industrial disputes for betterment of their conditions of service. This would impose an additional financial burden on the newspaper establishments and would substantially affect their capacity to pay. The retrospective operation of the decision of the Wage Board was also calculated to impose financial burden on the newspaper establishments.
The employers of the newspaper establishments are subjected to discriminatory treatment by the Act in that,
(i) they are singled out from all other industrial employers who are covered by the ordinary law regulating industrial relations under the Industrial Disputes Act, 1947;
(ii) they have been saddled with new burdens in regard to a section of their workers in matters of gratuity, compensation, hours of work and wages;
(iii) s. 12 of the Act makes the decision of the Wage Board binding only on the employers and not on the employees and
(iv) s. 17 provides for recovery of money from employers only and not from employees in the same manner as an arrear of land revenue.
The classification made by the impugned Act is arbitrary and unreasonable in so far as it removes the newspaper employers vis-a-vis the working journalists from the general operation of the Industrial Disputes Act, 1947.
Contentions of Petitioner’s counsel
- The freedom of the Press is a fundamental personal right of the petitioners. It rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public. Such freedom is the foundation of a free government and as such enjoys a preferential position among the constitutional guarantees. This is a “preferred right “.
- While the Press enjoys no immunity from the application of the general laws relating to industrial relations, an Act or any of its provision would violate the right of free speech and expression if it lays a direct and preferential burden on the freedom of the Press; if it fetters the petitioners’ freedom to choose the means of exercising’ their right to freedom of expression and if it is likely to undermine the independence of the Press by having to seek Government aid.
- The Act has created an impossible situation in which the petitioner could only say ” I cannot live, I cannot die and I cannot commit suicide “. Even if the petitioners were to close down their business and dispose of all their assets they would not be in a position to meet all the liabilities
[In this article, we will not mention the Act’s analysis by the court, because, that is not relevant at current times, we will just mention important law set by supreme court under the light of freedom of free speech and expression.]
The court’s observations
- No measure can be enacted which would have the effect of imposing a pre- censorship, curtailing the circulation or restricting the choice of employment or unemployment in the editorial force. Such a measure would certainly tend to infringe the freedom of speech and expression and would therefore be liable to be struck down as unconstitutional.
- While therefore no such immunity from the general laws can be claimed by the press it would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or which would curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid.
Laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent news- papers from being started and ultimately drive the press to seek Government aid in order to survive, would therefore be struck down as unconstitutional.
- In the present case it is obvious that the only justification for the enactment of the impugned Act is that it imposes reasonable restrictions in the interests of a section of the general public, viz., the working journalists and other persons employed in the newspaper establishments. It does not fall within any of the categories specified in Art. 19 (2), viz.,
“In the interests of 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.”
- The court observed that Article 19 (2) being thus out of the question the only point that falls to be determined by them was whether the provisions of the impugned Act in any way take away or abridge the petitioners’ fundamental right of freedom of speech and expression.
- In relation to Constitutional prohibitions binding a legislature it is clear that the legislature cannot disobey the prohibitions merely by employing indirect method of achieving exactly the same result. Therefore, in all such cases the court has to look behind the names, forms and appearances to discover the true character and nature of the legislation.
- It is obvious that the enactment of this measure is for the amelioration of the conditions of the workmen in the newspaper industry. It would not be possible for the State to take up all the industries together and even as a matter of policy it would be expedient to take the industries one by one.
- This circumstance by itself would therefore not be indicative of any undue preference or a prejudicial treatment being meted out to that particular industry, the main object being the amelioration of the conditions of those workmen. It could not also be said that there was any ulterior motive behind the enactment of such a measure because the employers may have to share a greater financial burden than before or that the working of the industry may be rendered more difficult than before. These are all incidental disadvantages which may manifest themselves in the future working of the industry, but it could not be said that the Legislature in enacting that measure was aiming at these disadvantages when it was trying to ameliorate the conditions of the workmen.
- All the consequences which have been visualized in this behalf by the petitioners, viz., the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners’ freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid; the imposition of penalty on the petitioners’ right to choose the instruments for exercising the freedom or compelling them to seek alternative media, etc., would be remote and depend upon various factors which may or may not come into play.
Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation.
- Employers qua the working journalists again would be a class by themselves and if a law was enacted to operate as between them in the manner contemplated by the Act that could not be treated as discriminatory. If measures have got to be devised for the amelioration of the conditions of working journalists who are employed in the newspaper establishments, the only way in which it could be done was by directing this piece of legislation against the Press Industry employers in general.
Even considering the Act as a measure of social welfare legislation the State could only make a beginning somewhere without embarking on similar legislations in relation to all other industries and if that was done in this case no charge could be levelled against the State that it was discriminating against one industry as compared with the others.
- The only question for consideration would be whether there was a nexus between the basis of classification and the object of the Act sought to be challenged. In court’s opinion, both the conditions of permissible classification were fulfilled in the present case. The classification was based on an intelligible differentia which distinguished the working journalists from other employees of newspaper establishments and that differentia had a rational relation to the object sought to be achieved, viz., the amelioration of the conditions of service of working journalists.
- These Civil Appeals were directed against the decision of the Wage Board and seek to set aside the same as destroying the very existence of the newspaper establishments concerned and infringing their fundamental rights. The court allowed the petitioners to an order declaring that s. 5 (1) (a) (iii) of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955, was ultra vires the Constitution of India and that the decision of the Wage Board dated April 30, 1957, was illegal and void.
Express Newspapers (Private) vs The Union Of India And Others