In the previous two posts, we examined the case for treating the exclusionary effects of an unregulated newspaper market as a genuine impediment upon the freedom of speech and expression, attributable to the government, and thus a potential violation of Article 19(1)(a). Our case study was Sakal Papers v. Union of India. Three years earlier, in 1958, the Court was called upon to decide Express Newspapers v. Union of India. In that case, a statutory Wage Board had established a minimum wage that newspapers must compulsorily pay to all working journalists. This was challenged before a Constitution Bench on the ground that the wage in question was so high that it would drive newspapers out of business. Thus, the regulations of the Wage Board violated Article 19(1)(a).

After going into a detailed history of minimum wage fixation policies across the world, the Court examined American cases such as Grosjean, which made it clear that the press was not immune from general policies of taxation or labour welfare that the government might choose to pursue. Nonetheless:

“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 newspapers from being started and ultimately drive the press to seek Government aid in order to service, would therefore be struck down as unconstitutional.” (Paragraph 207)

In the present case, the Court found that in substance, the impugned Act was designed to ameliorate 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) challenged failed. (Paragraphs 218 – 219)

Yet what, precisely, is the distinction between Express Newspapers and Sakal Papers? How is it that the relationship between a price-per-page policy and newspaper circulation is proximate, but that between a fixed minimum wage and circulation is not? Why is legislative intent to open up the market and make it more equitable constitutionally suspect, but an intent of improving labour conditions not? A newspaper’s inability to access the market because it can’t compete with the economies of scale that established newspapers run upon is not treated as an impediment to freedom; but a newspaper’s inability to access the market because it is required, by law, to pay a certain wage to its journalists is not so treated. Why?

The intent and effect tests surely cannot refer to a mere statistical correlation between the policy and newspaper circulation. In neither Express Newspapers nor Sakal did the Court enter into the question of likelihood; and there is, of course, no evidence to suggest that a price-per-page policy has a greater chance of reducing circulation than a minimum wage. The proximity requirement, therefore (much as in the public order cases) contains an inbuilt set of moral assumptionsassumptions about what counts as “direct”, and what counts as an “external factor” that makes the relationship between, say, a tax and a fall in circulation “indirect”.

So, what are these moral assumptions? For the answer, we must return to the arguments of the previous post: freedom of speech and expression does not exist in vacuum, but exists enmeshed within an existing legal framework that, in turn, is predicated upon a series of political choices. This, recall, is the point that Cohen makes: when we’re talking about freedom, therefore, we aren’t talking about simple facts relating to ability to do things and interferences with that ability, but about explicit political choices: and every judicial decision, therefore, implicitly endorses one set of political choices, and rejects another. In Sakal Papers, the Court endorsed the existing market; in Express Papers, it made an exception for price-fixation. In other words, according to the Court, the existing market subject to tax and labour legislation, are not an impediment upon freedom, but conditions under which freedom is exercised.

And the Court re-emphasised this position more recently, in 2004, when in Express Publications (Madurai) v. Union of India, echoing the direct-intent-and-effect test laid down in Express Newspapers. Our agreement or disagreement with the judgments in Express Newspapers and Sakal depends upon our agreement or disagreement with the political choices that underlie those judgments.

The argument becomes clearer when we compare the decisions above with the famous case of Bennett Coleman v. Union of India (1973). In Bennett Coleman, the Newsprint Order (1962) and the Newsprint Policy (1972) were challenged; the Newsprint Order placed certain restrictions upon the import of newsprint (complementarily, publishing newspapers in material other than newsprint was prohibited); while the Newsprint Policy prohibited common ownership units from starting new newspapers, limited the maximum number of pages to ten, and allowed a twenty percent increase in page level to newspapers that had less than ten pages. The Court upheld the Order, reasoning that newsprint was a scarce resource, and that its allocation was a matter of governmental policy with which the Court would not interfere, as long as it was bona fide and in good faith. The Policy, on the other hand, was defended on the same grounds as Sakal (prevention of monopolies, growth of small papers), and struck down for the same reasons as in Sakal (no violation of the rights of big newspapers permitted in order to help small newspapers grow) (see Paragraphs 79, 81, 82). Once again, therefore, the availability of newsprint is deemed to be a background condition within which newspapers (i.e., journalists and editors, as held in this case) exercise their right to freedom of speech and expression, and not itself an infringement upon that right; whereas restrictions upon page limits, upon advertisements, and so on, do constitute an infringement. Bennett Coleman also departed from Express Newspapers in rejecting an object-cum-effect test in favour of a pure “direct effect” test; once again, though, it is abundantly clear that “direct effect” is not a question of statistical probabilities, since restricting availability of newsprint and curtailing the amount of pages a newspaper can have are surely both equally directly affecting circulation.

The issue is sharpened by a close look at Justice Mathew’s dissent (although not upon the point at issue). Justice Mathew, following the American Professors Mikheljohn and Emerson, distinguished between the abridgment of speech and the abridgment of the freedom of speech. The newsprint quota, for him, did abridge speech, but not the freedom of speech (paragraph 108). We must therefore repeat the question we have been asking in our previous posts on newspaper regulation: what is the principle that determines when my inability to do something amounts to an unfreedom to do it? We have seen earlier that the most common – and intuitively plausible distinction – is between the effects of natural events (such as a flood), and the acts that can be traced to human agency. If that is the line that Bennett Coleman draws, then we could say that scarcity of newsprint (and therefore the need to ration) amounts to a natural event, while controlling page limits is an infringement by the government. Yet it is unclear whether this distinction is philosophically plausible, because the scarcity of newsprint – which, in Bennett Coleman, was imported from abroad – also depends directly upon governmental action (in particular, issues of budgetary priorities). So it is difficult to draw the line in such a way.

A possible principle is provided in the case of Indian Express Newspapers v. Union of India. (1984) 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 a similar contribution to the exchequer as other individuals and business in a similar position, and those that imposed a fiscal burden over and above such contribution. 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 that are 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.