Indian Express Newspapers v Union of India by Mayurakshi Sarkar

 Indian Express Newspapers v Union of India: Case Analysis

Facts of the case

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. 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. 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. 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

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.”

• 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.

• 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.

Judgement

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.