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Ushodaya Publications (P) Ltd. and ors. Vs. Government of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 7763 of 1979
Judge
Reported inAIR1981AP109
ActsConstitution of India - Articles 14, 19, 19(1), 19(2) and 226; Newspaper (Price asnd Page) Act, 1956 - Sections 3 and 3(1); Daily Newspaper (Price and Page) Order, 1960
AppellantUshodaya Publications (P) Ltd. and ors.
RespondentGovernment of Andhra Pradesh and ors.
Appellant AdvocateSoli J. Sorabji and ;C. Seetharamayya, Advs.
Respondent AdvocateAdv. General and ;Government Pleader for G.A.D.
Excerpt:
constitution - freedom of press - articles 14 and 19 (1) (a) of constitution of india - government by an order authorised director of information to release advertisement subject to guidelines issued thereunder - petitioner challenged order as violative of article 19 (1) (a) and 14 - held, order does violates right to freedom of speech and expression of petitioner as government has got right to select newspapers to whom advertisement has to be given. - - in order to discharge this responsibility effectively in the interest of the various organisations and afford opportunity to newspapers to carry the contents of advertisements to their respective readers the department has adopted the following guidelines. (c) reaching specific sections of a people as effectively as possible.....alladi kuppuswami, ag. c.j.1. in this writ petition the petitioner challenges the validity of g.o. ms. no. 572, general administration (i.p.r.) department dated 10-8-1979 by which all advertisements of government departments, public sector undertakings and government companies are directed to be released only by the director, information and public relations to the various newspapers keeping in view the subject-matter of the advertisement.2. the ist petitioner ushodaya publications (private) limited, owns a leading telugu daily 'eenadu', which is published from hyderabad, visakapatnam and vijayawada. the 2nd petitioner is the chairman of the board of directors of the ist petitioner company and is the printer and publisher of eenadu. eenadu was started in the year 1974 and within a period.....
Judgment:

Alladi Kuppuswami, Ag. C.J.

1. In this writ petition the petitioner challenges the validity of G.O. Ms. No. 572, General Administration (I.P.R.) Department dated 10-8-1979 by which all advertisements of Government Departments, Public Sector Undertakings and Government Companies are directed to be released only by the Director, Information and Public Relations to the various newspapers keeping in view the subject-matter of the advertisement.

2. The Ist petitioner Ushodaya Publications (Private) Limited, owns a leading Telugu daily 'EENADU', which is published from Hyderabad, Visakapatnam and Vijayawada. The 2nd petitioner is the Chairman of the Board of Directors of the Ist petitioner company and is the printer and publisher of Eenadu. Eenadu was started in the year 1974 and within a period of five years it has reached a daily circulation of over two lakhs which, according to the petitioner is the highest circulation for a newspaper in the State.

3. As the prayer in the Writ Petition is to quash the said Government Order by the issuance of a writ of certiorari or any other appropriate writ, it is necessary to set out G.O. Ms. No. 572 in full and it reads thus ;

'G. O. Ms. 572

Dated 10-8-1979.

ORDER

1. As per the existing practice, all the Government Departments except the Irrigation and Power Department including projects wing are issuing advertisements only through the Director, Information and Public Relations. The bills in respect of advertisement charges for all the Departments except the Irrigation and Power Department including Projects wing are being settled by the Director, Information and Public Relations out of the budget provision made under the Major Head '285-Information and publicity'. As regards the public sector undertakings Government Companies, all advertisements are, at present being issued by them direct to the newspapers without the media of the information and Public Relations Department. The bills in respect of advertisements are also being settled by the respective Corporations/Companies.

2. Government have reviewed this practice and have now decided that, all advertisements of Government Departments/Public Sector Undertakings/Government Companies should hereafter be released only by the Director, Information and Public Relations Department. It has also been decided that the present practice of the Departments indicating the newspapers in which the advertisements should be published should be discontinued. The Directorate of Information and Public Relations will release the advertisements to the various newspapers keeping in view the subject matter of the Advertisements.

3. The Irrigation and Power Department, including Projects wing, who are at present issuing advertisements direct to the newspapers are requested to issue suitable instructions to all the officers under its control, including those who are specially delegated powers for issue of such advertisements, to stop forthwith release of advertisements, direct to the newspapers and periodicals. The Irrigation and Power Department including Projects wing are also requested to take immediate action for the transfer of provision made in its departmental budget towards advertisement charges to Major Head '285-Information and Publicity', in consultation with the Finance and Planning Department.

4. & 5. xx xx xx

6. The Andhra Pradesh State Road Transport Corporation and other Corporations which have empowered their Regional Officers to release advertisements are requested to issue necessary directives to all such officers immediately to stop issue of advertisements directly on behalf of the Corporation. All the Departments of Secretariat are requested to issue suitable instructions to the Corporations/Companies under their administrative control for strict compliance of the above orders and mark copies thereof to this Department for reference and record.

7. This order issued with the concurrence of Finance and Planning vide their U. O. No. 2319/FPSP, dated 9-8-1979.

(By order and in the name of the Governor of Andhra Pradesh)

Sd. S. R. Rama Murthy,

Chief Secretary to Government

4. The affidavit in support of the petition is a long one and sets out several contentions. As these include allegations of mala fides against the Chief Minister Dr. M. Chenna Reddy, he has also been impleaded as the 4th Respondent; the Ist respondent being the Government of Andhra Pradesh the 2nd Respondent, Information and Public Relations Departments represented by its Secretary and the 3rd respondent, the Chairman for the Formulation of Advertisements. Respondents 1 to 4 have filed an elaborate common counter-affidavit denying the various allegations contained in support of the writ petition. The 4th respondent has filed a separate counter-affidavit denying the allegations of mala fides as against him. He has also filed a supplemental counter-affidavit dated 11th August, 1980. A reply affidavit has been filed by the petitioner. It is unnecessary to set out in detail the facts and propositions of law stated by the respective parties in these affidavits. The petitioners have set out their submissions which are found in page 11 of Vol. 3 of the documents placed before us and as Sri Soli J. Sorabjee, the learned advocate for the petitioners submitted his arguments before us on the basis of those submissions, it is sufficient to summarise the said submission. But before doing so, it is also necessary to mention that after the filing of the writ petition praying for the issue of a writ of certiorari to quash the above G. O., the Government in January, 1980, formulated certain guidelines in regard to the advertisement procedure in the following terms:

'GOVERNMENT OF ANDHRA PRADESH

Department of Information and Public Relations, Hyderabad.

ADVERTISEMENT PROCEDURE

'1. The Department of Information and Public Relations is responsible for release of all advertisements in various newspapers and periodicals on behalf of Government Departments/Public Sector Undertakings/Government Companies and local bodies. In order to discharge this responsibility effectively in the interest of the various organisations and afford opportunity to newspapers to carry the contents of advertisements to their respective readers the Department has adopted the following guidelines.

2. Advertisements will be so inserted as to ensure effective and widest possible publicity. Political affiliations will not be taken into account in placing Government advertisements. Advertisements will not be issued, however, to newspapers and periodicals adopting any of the following tones.

(i) Anti National.

(ii) Communal.

(iii) Rabid, Abusive.

(iv) Provoking tensions between different sections of the society;

(v) Distorting news for mischievous purpose;

(vi) Character assassination, blackmailing and attacks on individuals or mud-slinging without proper and truthful evidence and intimidation;

(vii) Fomenting group rivalries and quarrels and thereby indulging in mischievous gossip mongering and sensationalism;

(viii) Abusive and Slanderous attacks on Government or its functionaries.

3. Classified advertisements shall be issued to dailies only.

4. In selecting newspapers for placing advertisements the following considerations will be taken into account.

(a) Regularity and timely issue;

(b) Coverage of readers from different walks of life, particularly in the case of State Campaigns.

(c) Reaching specific sections of a people as effectively as possible depending upon the message of advertisement;

(d) To use only newspapers and periodicals with a minimum paid circulation of 2,000 copies.

Exceptions would be made in the case of the following :--

(1) Telugu dailies published from places other than Hyderabad city, Vijayawada and Visakapatnam and Urdu dailies published from within the State. In these cases minimum paid circulation should be 1,000 copies.

(ii) In the case of periodicals which are specialised scientific and technical journals, the minimum paid circulation should be 500 copies.

(iii) The newspapers and periodicials should have uninterrupted and regular publication as follows:

(i) Dailies and Weekliesand Fortnightlies 6 months(ii) Monthlies and quarterlies 2 years(iii) Six monthlies andannuals. 3 years5. Production Standards: The following specification shall apply:

A daily newspaper should have a minimum of four pages daily and should the having size not less than 45 Cm x 7 standard column width or equivalent printed space. Weeklies and Fortnightlies should have the following size and number of pages:

Printed Area not less than Minimum No. of pages

30 cm. X 4 cols.6 or equivalent printed space.20 cm. X 3 cols.12 do. 15 cm. X 2 cols.24 do.

Periodicals other than weeklies and Fortnightlies should have the following size and number of pages.

Size.Minimum No. of pages

20 cm. x 3 cols3215 cm. x 2 Cols.40

All the dailies and periodicals which desire to be considered for inclusion in media list, should furnish either C. A or A. B. C., certificate on or before 31st March. The circulation figures if proved incorrect will render the papers/periodicals ineligible for advertisements.

Sd. B. N. Raman,

Principal Secretary,

(SW and 1 and PR)

5. The submissions relate not only to the validity of the G. O. Ms. No. 572, but also to the above guidelines laid down by the Government. The submissions of the learned counsel for the petitioners may be summarised as follows:

1. The G. O. read with the guidelines places restriction in the matter of advertisements and adversely affects the freedom of the press because advertisements are the main source of revenue of newspapers and are also one of the factors for circulation. Any restraint on circulation or advertisement howsoever imposed, is a restraint on the freedom of the press which is included in the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution.

2. The G. O. read with the guidelines is violative of Article 19(1)(a) of the Constitution inasmuch as

(a) they are not law and the first prerequisite for a valid restriction of the fundamental rights guaranteed under Article 19 including freedom of expression under Article 19(1)(a) is that there must be a law or some legislative authority for the restriction imposed.

(b) The restrictions imposed go beyond the permissible heads under Article 19(2).

(c) the restrictions imposed are unreasonable because of the vagueness and imprecision and lack of definiteness in the factors disqualifying a newspaper from receiving advertisements, and also because of the absence of requisite procedural safeguards, such as a right to notice and hearing, absence of any machinery for redress or correction of an adverse decision by way of appeal or revision, and conferment of absolute discretion in a single individual.

(3) The G. O. is violative of Article 14 inasmuch as it confers discretion which is unregulated by law in respect of a fundamental right. It is also violative of Article 14 for the reasons set out in 2 (c).

(4) The criteria adopted by the G. O. for the release of advertisements are irrational and not germane to the object of issuing advertisements, which is to ensure the widest publicity for the advertisements. The relevant factor of circulation is ignored.

(5) The G. O. has been implemented in a discriminatory manner. The particulars of discrimination have been set out in para 9 of the petition.

(6) The impugned G. O. has been issued mala fide and with the ulterior object of punishing 'Eenadu' for its strong and constant criticisms of the State Government and its Ministers.

6. The first question for consideration is whether the impugned G. O. read with the guidelines issued subsequently infringes the petitioner's fundamental right to freedom of expression under Article 19(1)(a) of the Constitution. It is well settled that, though the expression 'freedom of press' does not occur in Article 19(1)(a), freedom of Press is a part of the right of free speech and expression and is covered by Article 19(1)(a). Freedom of Press is nothing but an aspect of freedom of speech and expression and is an integral part of free speech and expression 'and is the same right applicable in relation to the press, In this connection it is sufficient to refer to the decisions in Express News Papers Case, : (1961)ILLJ339SC , Sakal papers (P) Ltd. v. Union of India, : [1962]3SCR842 , Bennett Coleman & Co. Ltd. v. Union of India, : [1973]2SCR757 and the recent decision of the Supreme Court in Maneka Gandhi v. Union of India, : [1978]2SCR621 . Further freedom of circulation of newspapers is necessarily involved in freedom of speech and expression and is part, of it and hence enjoys the protection of Article 19(1)(a), vide Romesh Thappar's case, : 1950CriLJ1514 . It is contended on behalf of the petitioners that the impugned G. O. by directing that the advertisements to be made by Departments of Government, Government Companies etc., should be left to the discretion of the Director Information and Public Relations, has a direct and immediate effect on the circulation of the petitioners' newspaper and thus infringes the right of the freedom of press guaranteed under Article 19(1)(a) of the Constitution and the restrictions imposed are not reasonable restrictions within the meaning of Article 19(2) of the Constitution. On the other hand, the contention of the learned Advocate General on behalf of the the Government is that the Government like any other individual has the right to determine the mode and manner in which its advertisements should be made in newspapers including the selection of the newspapers in which the advertisements should be made and that there is no fundamental right for any newspaper to demand that the Government should give any or all of its advertisements to that newspaper, It is, therefore, submitted that the further question whether the restrictions imposed by the G. O. are reasonable or not does not arise.

7. Hence it has first to be considered whether any fundamental right of the petitioners is infringed by the impugned G. O. Shri Soli J. Sorabji, the counsel for the petitioners, relied on Sakal papers (P) Ltd. v. Union of India, : [1962]3SCR842 and Bennett Coleman & Co. Ltd. v. Union of India, : [1973]2SCR757 in support of the contention that there is an infringement of the freedom of press by reason of the impugned G. O.

8. In Sakal Papers (P) Ltd. v. Union of India (supra) the Supreme Court had to consider the constitutionality of the Newspaper (Price and Page) Act (1956) and the Daily Newspaper (Price and Page) Order (1960). The effect of the Act and of the impugned order was to regulate the number of pages according to the price charged, to prescribe the number of supplements to be published and to prohibit the publication and sale of newspapers in contravention of any Order made under Section 3 of the Act. The Act also provided for regulating by an order under Section 3 the sizes and area of advertising matter in relation to the other matters contained in a newspaper. It was held that Section 3(1) of the Act in so far as it permitted the allocation of space to advertisements, directly affects the freedom of circulation. The Supreme Court observed:

'If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements'.

The Supreme Court pointed out that the guarantee of freedom of speech and expression would be impinged either by placing restraint upon it directly or by placing restraint upon something which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression.

9. In Bennett Coleman & Co. Ltd. v. Union of India, : [1973]2SCR757 (supra) the petitioners challenged the Import Policy for Newsprint for the year 1972-73. Under the Newsprint Policy no newspaper or new edition could be started by a common ownership unit even within the authorised quota of newsprint. Secondly, there was a limitation of the maximum number of pages to 10. Thirdly no interchangeability was permitted between different papers of common ownership unit or different editions of the same paper. Fourthly, allowance of 20 per cent increase in page level up to a maximum of 10 has been given to newspapers with less than 10 pages. These restrictions were challenged as constituting infringement of the right of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The Supreme Court observed that the law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19(2). If the area of advertisement is restricted price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers case : [1962]3SCR842 (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspect of propagation, publication and circulation. The Supreme Court after considering the various provisions of the Newsprint Import Policy held that the effect and consequence of the impugned policy upon the newspapers is to directly control the growth and circulation of newspapers. It is also observed that the direct effect is that newspapers are deprived of their area of advertisement and exposed to financial loss and hence the direct effect is that freedom of speech and expression is infringed. They pointed out that if as a result of restriction on page limit the newspaper will have to sacrifice advertisements and thus weaken the link of financial strength, the organisation may crumble. The loss on advertisements may not only entail the closing down but also affect the circulation and thereby impinge on freedom of speech and expression.

10. It is argued on behalf of the petitioners that under the impugned G. O. the Director, Information and Public Relations, is given the discretion to choose the newspapers in which the advertisements by the Government or Government companies etc., are to be made. In the affidavit in support of the writ petition it is pointed out that Eenadu was not given several advertisements which were released to other Telugu newspapers. The Visakapatnam Municipality, which used to release all its advertisements to the petitioner's newspaper, ceased to give the advertisements after the G. O. to the petitioners. The total revenue from the advertisements from the Government which the newspaper lost was nearly rupees five lakhs for the months of September, October and November, 1979. It is, therefore, argued on the strength of the above decisions that the direct effect of the above G. O. was to reduce the advertisements given to Eenadu which will have the direct effect of reducing its circulation and thereby its freedom guaranteed under Article 19(1)(a) is affected.

11. We do not think that the above decisions are of any assistance to the petitioners. In those cases restrictions on the right to advertise in the newspapers were placed by reducing the number of pages or placing limits on the area of advertisements and other methods. In this case, however, the G. O., does not seek to place any such restriction on the petitioners' right to advertise. All that the G. O. does is to empower the Director, Information and Public Relations, to chose the newspapers in which the advertisements of Departments of Governments or Government Companies etc., have to be made. Even before the G. O. the departments of Government and Government Companies were free to choose the newspapers to which they would give their advertisements. The only modification made by the Government Order was to see that these advertisements were made through the machinery of the Director, Information and Public Relations who was given the power to choose the newspapers. We do not find any observation of the Supreme Court in any of the decisions relied on by the petitioners to the effect that the newspapers have a right to demand and obtain advertisements from the Government or any other individual or that the Government has no right to choose the newspaper in which it would advertise. On the other hand, in Hamdard Dawakhana v. Union of India, : 1960CriLJ671 it was observed that while advertisement is no doubt a form of speech, when it takes the form of a commercial advertisement, it no longer falls within the concept of freedom of speech for the object is not propagation of ideas --social, political or economic or further-once of literature or human thought; but the commendation of the efficacy, value and importation of certain goods. As has been repeatedly observed the State can enter into a contract with any person it chooses and no person has a right to insist that the Government must enter into a contract with him, vide E. E. & C. Ltd. v. State of West Bengal, : [1975]2SCR674 . The petitioners have no right to insist that the Government should give their advertisements to the petitioner which, in other words, means that the State should enter into a contract of advertisement with the petitioners. In the recent decision of the Supreme Court in Maneka Gandhi v. Union of India, : [1978]2SCR621 the Supreme Court observed that it is not enough that a right claimed by the petitioner flows or emanates from a named fundamental right or that its existence is necessary in order to make the exercise of the named fundamental right meaningful and effective. Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right. The test which must be applied is whether the right claimed by the petitioner is an integral part of named fundamental right or partakes of the came basic nature and character as the named fundamental right so that the exercise of such right is in reality and substances nothing but an instance of the exercise of the named fundamental right. It went on to observe that every activity that may be necessary for the exercise of freedom of speech and expression or that may facilitate such exercise or make it meaningful and effective cannot be elevated to the status of a fundamental light as if it were part of the fundamental right of free speech and expression. Otherwise, practically every activity would become part of some fundamental right or the other and the object of making certain rights only as fundamental rights with different permissible restrictions would be frustrated.

12. We have no hesitation in rejecting the first contention of the petitioners that the G. O. places restrictions in the matter of advertisements and adversely affects the freedom of the press and thus violates Article 19(1)(a) of the Constitution.

13. The petitioners relied strongly upon the decision in In re Kerala Education Bill, AIR 1958 SC 956 in which the Supreme Court held that clauses 14 and 15 of the Kerala Education Bill offended Article 30(1) of the Constitution. In that case it was contended that clauses 6, 7, 9, 10, 11, 12, 14, 15 and 20 which relate to the management of aided schools violated Article 30(1) of the Constitution under which the minorities are entitled to establish and administer educational institutions of their choice. It was argued before the Supreme Court that though there is no right in any minority to get aid, if the State chooses to grant aid, then it must not say 'I have money and I shall distribute aid but I shall not give you any aid unless you surrender, to me your right of Administration.' The State must not grant aid in such manner as will take away the fundamental right of the minority community under Article 30(1). It was submittted, that recognition and grant of aid is a Governmental function and, therefore, the State cannot impose terms as conditions precedent to the grant of recognition or aid, which will be violative of Article 30(1). Dealing with this argument, the Supreme Court observed that clauses other than clauses 14 and 15 were permissible regulations which the State may impose on the minorities as a condition for granting aid to their educational institutions. Clause 14 enabled the Government to take over the management for a period of not exceeding 5 years in certain contingencies and in case of emergency take over the management even without giving notice to educational agency and under clause 15 the Government of Kerala had the power to acquire any category of aided schools in any specified area or areas, if they are satisfied that for standardising general education in the State of Kerala or for improving the level of literacy in any area or for more effectively managing the aided educational institutions in any area or for bringing education of any category under their direct control, if in the public interests it was necessary to do so. The Supreme Court held that these two clauses were totally destructive of the right of a minority to establish and administer institutions under Article 30(1) and were therefore ultra vires. It was argued by the petitioners that in the above case the Supreme Court observed that though there was not right in the minority institutions to ask for aid, when such aid is granted, it was not open to the State Government to impose the conditions which would affect the fundamental rights of the minority institutions under Article 30(1). In the same way, though the petitioners or any other newspaper has no right to insist that the Government should give their advertisements to them, it is open to them to contend that while giving advertisements, it is not open to the State Government to impose conditions which would deprive the newspapers of their fundamental right to freedom of press under Article 19(1)(a) of the Constitution. In our view, the present case bears no resemblance to the facts in In Re Kerala Education Bill (AIR 1958 SC 956)(supra). In that case before the Supreme Court it was found that clauses 14 and 15, which enabled the Government to acquire the aided schools to take over their management, completely destroyed the fundamental right guaranteed under Article 30(1) of the Constitution. In this case we are unable to see how merely by the State leaving it to the Director, Information and Public Relations to give Government advertisements to newspapers, the freedom of the press or any other newspaper is affected. As we have already observed, the right to advertise or to obtain advertisements of any newspaper is not in any way touched by the impugned G. O. All that the G. O. does is to constitute the Director of Information as the authority to release the Government's advertisements to the newspapers in the light of the guidelines issued by it.

14. In this connection, it may be useful to refer to the decision of the Supreme Court in Railway Board, New Delhi v. N. Singh, : (1969)IILLJ743SC where the Supreme Court had to consider whether the right to free speech is affected by preventing persons from holding meetings in the railway premises. The Supreme Court held that there is no right to hold meetings on private property belonging to others. In the same way, the Government has got the right to give its advertisements to such papers as it pleases and it is not open to the petitioners to contend that the Government by denying the Government advertisements to the paper, the freedom of press of the newspaper concerned is violated.

15. Contention 2 (a): It is contended that the G. O. read with the guidelines is violative of Article 19(1)(a) inasmuch as they are not law and the fundamental rights guaranteed under Article 19 of the Constitution cannot be restricted otherwise than by a law. It is unnecessary to consider this contention, as we have already held that no fundamental right under Article 19(1)(a) is violated by the impugned G. O. For the same reason it is unnecessary to go into the contention 2 (b) that the restrictions imposed go beyond the permissible heads under Article 19(2) (b) and (c) and that they are unreasonable because of the vagueness and imprecision and also because of the absence of procedural safeguards etc.

16. This leads us to the third contention viz., that the G. O. is violative of Article 14. Though we have held that the Government is not bound to give its advertisements to the petitioners, it cannot be denied that while giving, advertisements to various newspapers the Government must do so without exercising any discrimination in favour of or against any particular newspaper. In the decision in Ramana v. I.A. Authority of India, : (1979)IILLJ217SC quoting the observations of Justice Mathew in V. Punnen Thomas v. State of Kerala, : AIR1969Ker81 (FB) the Supreme Court observed:

'The Government is not and should be as free as an individual in selecting the recipients for its largess. Whatever its activity, the Government is still the Government and will be subject to restraints, inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.' The Supreme Court further observed that it must be taken to be the law that where the Government is dealing with the public whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant or largess including award of jobs, contracts, quotas, licences, etc. must be confined and structured by rational, relevant and non-discriminatory standai i or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which, in itself, was not irrational, unreasonable or discriminatory. The same view was expressed in E. E. & C. Ltd. v. State of West Bengal, : [1975]2SCR674 where it was argued that the Government has absolute right to enter into a contract with anyone it chooses, the Supreme Court observed that the Government is not like a private individual and can pick and choose a person to whom it will deaf and it cannot, without adequate reason, exclude any person from dealing with it. The activities of the Government have a public element and therefore there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do so fairly without discrimination and without unfair procedure. In view of these decisions, the learned Advocate General fairly conceded that it is open to the petitioners to attack the G.O. on the ground of discrimination and violation of Article 14 of the Constitution.

17. In the course of its administration the Government realise revenue amounting to crores of rupees. The Government which derives these amounts from people is bound to use it for the benefit of the people without any discrimination, The Government is the guardian of the finances and it has a sacred duty to use State funds for the benefit of all concerned. It should not use the large sums in its hands either to favour an individual or a particular group of individuals or refuse to make those funds available on illegitimate grounds. The Government spends a considerable portion of the funds in its hands in paying for Government advertisements. The purpose of issuing advertisements is to educate the public about the activities of the Government, to promote its policies, and in cases where the Government or Government Companies are carrying on business or trade to advertise its wares. It is not expected of the Government to exercise this power in order to favour one set of newspapers or to show its displeasure against another section of the press. It should not use the power over such large funds in its hands to muzzle the press or as a weapon to punish newspapers which criticise its policies and actions. It has to use the funds in a reasonable manner consistently with the object of the advertisement viz. to educate and inform the public about the activities of the Government.

18. At the same time it has to be remembered that, as pointed out in Time v. Hill, (1967) 385 US 374 that the constitutional guarantee of freedom of speech and press is not for the benefit of the press so much as for the benefit of the people. As pointed out by the Supreme Court in M.S.M. Sharma v. Krishna Sinha, : AIR1959SC395 .

'The liberty of the press in India stands on no higher footing than the freedom of speech and expression of a citizen and that no privilege attaches to the press as such, that is to say, as distinct from the freedom of the citizen.'

The Supreme Court referred to the decision of the Privy Council in Arnold v. Emperor (AIR 1914 PC 116) in which the Privy Council observed:

'Their Lordships regret to find that there appeared on the one side in this case the time worn fallacy that some kind of privilege attaches to the profession of the press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever length the subject in general may go, so also may the journalist, but apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than that of any other subject. No privilege attaches to his position.'

In the light of these principles, it has to be seen whether the G. O. read with the guiding principles is violative of Article 14 of the Constitution. If we take the G. O. by itself, all that it says is that all advertisements of Government Departments/public sector undertakings/Government Companies should be released only by the Director, Information and Public Relations Department and the Directorate of Information and Public Relations will release the advertisements to the various newspapers keeping in view the subject-matter of the advertisement. It was submitted by the learned Advocate General that the Government has the right to decide upon the total amount to be spent on advertisements and it was felt that if each department was given the power to release advertisements independently to the newspapers, the Government was finding it difficult to control the total expenditure. It was, therefore, felt that it would be better to canalise the release of advertisements through a single department viz., the Director, Information and Public Relations. The G. O. by itself does not discriminate between one newspaper and another newspaper. We are of the view that it is open to the Government to adopt its own procedure for the release of Government Advertisements and the procedure adopted i.e. that it should be released through one of its Departments viz., the Director, Information and Public Relations cannot be challenged.

19. It was submitted that the power to select the newspaper is left to the entire discretion of a single individual viz., the Director, Information and Public Relations. No guidelines are prescribed. There is no procedural safeguard. There is no right of appeal or revision to a higher authority. Thus an unfettered and unguided power is given to the Director Information and Public Relations to choose the newspaper to which the advertisements had to be released and even to refuse to release the advertisements and the G. O. is therefore violative of Article 14. It was submitted that though guidelines were issued in January, 1980, the validity of the G. O. must be judged without reference to the guidelines. We are unable to agree. It is no doubt true that at the time when the writ petition was filed, there were no guidelines and even assuming that the Government Order could have been attacked as violating Article 14 in the absence of any guidelines as it gave an unfettered and unguided power to the Director to release the advertisements, we cannot ignore the circumstance that subsequent to the filing of the writ petition, the Government have formulated certain guidelines in January, 1980. The validity has, therefore, to be judged with reference to the guidelines.

20. In paragraph 4 of the G. O. the considerations in selecting the newspapers for placing advertisements are laid down. They are regularly and timely issue; coverage of readers from different walks of life, particularly in the case of State Campaigns; reaching specific sections of people as effectively as possible depending upon the message of advertisements; and to use only newspapers and periodicals with a minimum paid circulation of 2,000 copies. It cannot be denied that these considerations are relevant and germane in the matter of releasing Government advertisements and it was not even sought to be argued that these considerations are irrelevant. Exceptions are also made in the case of Telugu dailies published from places other than Hyderabad city, Vijayawada and Visakhapatnam and Urdu dailies which the minimum circulation is stated to be 1,000 copies. This exception is also proper as it cannot be expected that newspapers in small towns and cities can have as much circulation as in the bigger cities and towns like Hyderabad, and Vijayawada etc. Similarly Urdu dailies cannot be expected to have the same circulation as other newspapers. It was sought to be argued that circulation must be the sole criterion for the advertisement as the object of the Government is to reach the maximum number of readers. But at the same tune, it cannot be ignored that if circulation is the only criterion, the smaller newspapers will be completely denied all Government advertisements. It is also the petitioners' case that advertisement is one of the important sources of revenue for a newspaper. If this source is denied, all the smaller newspapers will be wiped out of existence resulting in the monopoly of a few newspapers only. Similarly the exception in case of scientific and technical journals for which a minimum of 500 copies is prescribed is also justified. There are further conditions regarding uninterrupted and regular publication and production standards all of which are relevant in considering whether the Government should release advertisements to such newspapers or not.

21. The main attack was on the conditions imposed in paragraph No. 2 of the G. O. After observing that the advertisements will be so inserted as to ensure effective and widest possible publicity and political affiliations will not be taken into account in placing Government advertisements, various other conditions are imposed for issuing advertisements. It is stated that advertisements will not be issued to newspapers and periodicals adopting any of the following tones.

(i) Anti-national.

(ii) Communal.

(iii) Rabid, abusive.

(iv) Provoking tensions between different sections of the society.

(v) Distorting news for mischievous purpose.

(vi) Character assassination, blackmailing and attacks on individuals or mudslinging without proper and truthful evidence and intimidation.

(vii) Fomenting group rivalries and quarrels and thereby indulging in mischievous gossip mongering and sensationalism.

(viii) Abusive and slanderous attacks on Government or its functionaries.

It cannot be denied that Conditions Nos. (i), (ii), (iv) are valid as no Government is expected to give its advertisements to newspapers which are anti-national or communal and provoke tension between different sections of society. We are also of the view that the Government is justified in withholding advertisements from newspapers which indulge in character-assassination, blackmailing and attacks on individuals and mud-slinging without proper and truthful evidence and intimidation, (Condition No. vi) and which make abusive and slanderous attacks on Government or its functionaries, (Condition No. 8). One cannot legitimately expect the Government to give its advertisements to those newspapers which make abusive and slanderous attacks on the Government and its functionaries in effect paving way for others to make abusive and slanderous attacks. This is not to say that the Government should withhold attempts which are inhere of its policies. We, however, agree with the submission that Condition No. (iii). 'Rabid abusive' has to be struck down. The expression 'rabid' is derived from the word 'Rabies' and the meaning as given in the (Oxford Dictionary is 'G' raging, fanatical. It is difficult to decide whether any view expressed by the newspaper is fanatical or abusive. A newspaper may be fanatical about what it considers to be a right cause. It may be abusive against what it considers to be injurious to the society or the community. The same is true in respect of condition (v), whether a newspaper distorts news for a mischievous purpose or not is difficult to determine. Firstly whether the way in which news is presented amounts to distortion is itself difficult to decide and much greater difficulty when one has to decide whether the alleged distortion is mischievous or not. Similarly when a newspaper takes sides with a particular group it is difficult to say that it does so for the purpose of fomenting group rivalries. Again views may vary Whether a news item amounts to mischievous gossip mongering and sensationalism according to the view of different persons concerned. We are, therefore, of the view that conditions (iii), (v) and (vii) have to be struck down as violative of Article 14 of the Constitution. In this connection reference may be made to the Advertising Policy of the Government of India which was issued to the Directorate of Advertising and Visual Publicity. In that policy it was said that advertisements will not be issued to newspapers and periodicals which incite communal passions to preach violence or offend socially accepted conventions of public decency and morals. It was also provided that political affiliations will not be taken into account in placing Government advertisements.

22. For all the reasons stated above, we are of the view that the G. O. is not violative of Article 14 but the conditions contained in Clauses (iii), (v), (vii) in the guidelines have to be struck down as violating Article 14 of the Constitution.

23. It was contended that even while laying down the guidelines, the Director is still made the final authority as to whether the advertisements should be given to a particular newspaper or not, For this reason the guidelines have to be struck down as violating Article 14. It has, however, to be remembered that the Director of Information is a reasonable officer and is expected to apply the guidelines in a fair and proper manner. In such circumstances, it has been laid down in a number of cases by the Supreme Court that the mere fact that the discretion is left to a single individual does not violate the rule or G. O. concerned vide C. Lingam v. Government of India. : [1971]2SCR871 , Khatki Ahmed v. Limdi Municipality, : [1979]2SCR338 , Vishnu Dayal v. State of U. P., : [1975]1SCR376 , Dwarka Prasad v. State of U. P., : [1954]1SCR803 see also the recent decision of a bench of this Court in W. P. No. 7584 of 1979, dated 19-8-1980: (reported in : AIR1981AP8 ) we would, however, like to observe that having regard to the fact that the revenue of the newspapers will be affected by several lakhs of rupees due to the decision of the Director of Information in choosing to give advertisements or not, it would be desirable to make a provision by way of an appeal or revision by an aggrieved newspaper to the Government. Even as it is, the act of the Director being only an administrative act, we are of the view that it is open, even in the present situation, for an aggrieved party to make a representation to the Government against any adverse order of the Director of Information. But it would be desirable if a provision by way of appeal or revision is made as of right.

24. The next submission is that though the G. O. on the face of it, may not be discriminatory, there was hostile discrimination against the petitioners in implementing the G. O. In the affidavit filed in support of the petition it is stated that during the months of September to December 1979, seven advertisements, the particulars of which are given in paragraph 9, were not given to Eenadu which were released to other Telugu newspapers. By the systematic denial of advertisements to Eenadu, it lost revenue of nearly five lakhs of rupees during this period. It was further stated that the Visakhapatnam Municipality used to release all its advertisements to Eenadu but after G. O. the advertisements of the said Municipality are not being given whereas they are being given to other Telugu newspapers which do not reach Visakhapatnam area in sizable numbers. It is stated that this hostility towards Eenadu is because the newspaper was fearlessly exposing the actions and activities of the Government. It carried editorial on charges of corruption and favouritism levelled against Chief Minister, regarding the complaints of mis-appropriation of the cyclone relief fund and condemning the decision of splitting up of the R. T. C. It also published a statement of Shri G. Ramaswami levelling charges of nepotism, favouritism and corruption and it carried a news item of an exclusive interview with him regarding the way the Chief Minister insulted him at a public function by asking him to vacate his seat in favour of junior official. Several other instances in which the newspaper criticised the various acts and policies of the 4th respondent, have been given. It is, therefore, stated that the G. O. was designed with a view to 'hang' the newspaper.

25. It is, however, stated in the counter affidavit that no discrimination was shown against the petitioners. Even after the issue of the G. O. it retained the second highest position in the receipt of advertisements from the Department of Information and Public Relations. The advertisements referred to in paragraph 9, which were not released to Eenadu, were not also released to various other dailies. In fact there have been instances where, after the impugned G. O. advertisements were given solely in Eenadu paper to the exclusion of other Telugu dailies.

26. In proceeding under Article 226 of the Constitution it is not possible or desirable to consider in detail as to the number of occasions when advertisements were withheld from the petitioners. After going through the various statements filed by either party, we are unable to say, on the material before us, that there was any hostile discrimination against the petitioners. It is admitted that even after the G. O. several advertisements were given to the petitioners. But it is argued that this was made with a view to make it appear that there was no discrimination. It is not possible for the Government to give its advertisements to every newspaper on each occasion. It has obviously to distribute its advertisements to different newspapers. The very fact that several advertisements were given to Eenadu would show that it was not considered as a newspaper to which advertisements should not be given according to the guidelines. We are, therefore, not satisfied that in the implementation of the G. O. there was discrimination against the petitioners.

27. Lastly, it was contended that the 4th respondent, the Chief Minister, acted mala fide in having the G. O. issued. As has already been noticed, the petitioner's case is that it was highly critical of the actions and policies of the 4th respondent und an editorial was written on the charges of corruption and favouritism levelled against the 4th respondent. The 4th respondent, therefore, according to the petitioners took a vindictive attitude. It is stated in the affidavit that on 1-8-1979 in a speech at a public meeting at Kavali he said obviously referring to the petitioners' papers :

'They may think that the paper is selling well today. They should also imagine what will happen in future. Their daily has constructed for itself beautiful large building at Visakhapatnam, Vijayawada and Hyderabad. God only knows from where the owners of the daily is getting so much capital.'

Reference also is made to the speech of Shri Janardhan Reddy, Ministe(sic)on 13th July, 1979 to the effect that Eenadu was an embodiment of falsehood and it should be hanged and the Government should take severe action against it. Further it is stated that the Government issued a circular to the I. G. of Police, other police officials and to the I. G. of Registration and Stamps requesting them to keep a watchful eye on the activities of Margadarsi Chit Fund company so that any specific offence that may come to light may be immediately (reported?) and appropriate action taken. The 2nd petitioner is the Chairman of the Board of Directors of Margadarsi Chit Fund Private Ltd. From all these acts, the petitioners seek us to draw an inference of mala fides. In a supplemental counter-affidavit the 4th respondent has denied that he made the statements attributed to him in the speech at Kavali. Regarding the speech by Shri Janardhan Reddy, it has to be observed that he is not made a party to this writ petition. Regarding the Margadarsi Chit Funds, the 4th respondent submitted that it was not directed against the petitioners but only instructions of the administrative nature were issued by the Home department, as representations have been received by the Government that the Margadarsi Chit Fund Company was indulging in several irregularities and fraudulent means. On this meagre material, it is not possible for us to draw an inference of mala fides against the 4th respondent. In this connection it has to be noted that the Chief Minister was not in charge of Public Information at the relevant time. It is no doubt true, as pointed out by the Supreme Court in Partap Singh v. State of Punjab, : (1966)ILLJ458SC that it is difficult to except normally any direct evidence of mala fides, and mala fides have to be inferred from the circumstances of the case. But at the same time, mere suspicion cannot take the place of proof vide E.P. Royappa v. State of Tamil Nadu, : (1974)ILLJ172SC . As the 4th respondent has denied that he made any such speech at Kavali as mentioned in the affidavit, it is not permissible for this court to merely proceed upon some newspaper reports. Such newspaper reports by themselves are not admissible in evidence vide Nageshwara Rao v. State of Andhra Pradesh, : [1960]1SCR580 .

28. For these reason, we are unable to hold, on the material available in this writ petition, that the Chief Minister was actuated by mala fides in issuing the G. O, and it was aimed at only against the petitioners' newspaper.

29. Lastly it was contended that though it may be permissible to the Government to issue directions with reference to its own advertisements, it cannot issue directions with reference to the Government Companies or to Municipalities. In paragraph 2 of the G. O. it is stated that all advertisements of Government departments, public Sector Undertakings, Government Companies should hereafter be released only by the Director. It is therefore clear from this that Municipalities or other local bodies do not come within the purview of the G. O. It as true that in paragraph 6 of the G. O. the Department of Secretariat are requested to issue suitable instructions to the Corporation and Public Companies under their administrative control. But the expression 'Corporation' here cannot obviously include 'Municipal Corporations' especially when, in the operative part of the G. O. mo reference is made to them. We, therefore, agree with the contention that the direction given to the Visakhapatnam Municipality by a telegram dated 27-8-1979 that the Government decided that local bodies should issue all advertisements only through D.I.P.R. and to stop forthwith the issue of advertisements is contrary to the G. O. In this connection it has to fee remembered that normally municipalities are managed by elected bodies and the principle of local self Government required that there should not be any interference in their affairs by the Government. It is possible in some cases that the management of the municipalities is in the hands of the bodies which do not belong to the same political group as the Government.

30. Regarding the Government companies, they obviously refer to companies which are wholly controlled by the State Government. As such, the Government is perfectly entitled to give instructions to those companies in the matter of issuing advertisements. Regarding Public Sector Undertakings, in the context, they can only refer to Public Sector Undertakings which are under the control of the State Government. Even in such cases in every case there is a provision in the articles for rules governing those undertakings that they will have to abide by the directions given by the Government from time to time. Hence it is not possible to say that the Government is not authorised to give directions to such Public Sector Undertakings.

31. In the result, the writ petition is allowed in so far as we hold that conditions (iii)(v) and (vii); of the guidelines issued in January, 1980 are violative of Article 14 and have to be struck down and that the direction given to the Visakhapatnam Municipality not to issue advertisements is contrary to the G. O. There will be a declaration that the G.O. will not apply to municipalities and local bodies which do not come within the definition of 'Public Sector' undertakings and 'Government Companies'. In other respects, the writ petition is dismissed. There will be no order as to costs.


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