Our Affidavit in WP 22585 of 2004 of which judgment has been already posted

This is our Writ Petition Affidavit in WP 22585 of 2004, the judgment of which has been posted in this blog yesterday:

IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD.
W.P. No. 22585 of 2004.

Between:
I. BALAMANI, w/o I. Mallikarjuna Sharma,
H. No. 6-3-1243/156, D. Sanjeevaiah Nagar, M.S. Makta,
Opposite Raj Bhavan, Hyderabad - 500 082. … PETITIONER.
A N D
1. The Concerned Magistrate for Newspapers - presently
Mr. Ismail, Deputy Commissioner of Police,
Office of the Commissioner of Police,
Basheerbagh, Hyderabad - 500 029.
2. The Registrar of Newspapers for India (RNI), Wing 2,
West Block 8, R.K. Puram, New Delhi - 110 066.
3. Government of Andhra Pradesh, represented by its
Chief Secretary, A.P. Secretariat, Hyderabad - 500 022.
4. Ministry of Information and Public Relations,
Government of India, headed and represented by
Sri S. Jaipal Reddy, Union Cabinet Minister,
14, Akbar Road, New Delhi - 110 011. ... RESPONDENTS.

* * *

AFFIDAVIT FILED BY THE PETITIONER :

I, Smt. I. Balamani, wife of I. Mallikarjuna Sharma, Age: 38 years, Occupation: self-employed housewife; R/o H.No. 6-3-1243/116, D. Sanjeevaiah Nagar (M.S. Makta), Opposite Raj Bhavan, Hyderabad - 500 082, do hereby solemnly affirm and sincerely state as follows:

1. I am the petitioner herein and, as such, well acquainted with the facts of the case. I am filing this writ petition aggrieved by the callousness and inaction of the 1st respondent herein who is illegally demanding user-charges for even processing my application for verification of title for my proposed newspaper, of the 2nd respondent who has not verified the title despite my direct representation to him in this regard and the policy decisions and practices of 3rd and 4th respondents in this connection, all of which cumulatively infringe my freedom of expression guaranteed by Article 19 as also my right to a dignified and free life guaranteed by Article 21 of the Constitution. I am deposing to this affidavit to the best of my information, knowledge and belief, and that I believe to be true.
2. I submit that I am a postgraduate in commerce and also a self-employed housewife, undertaking occasional publications of some socially useful good books in English and Telugu as the sole proprietress of Ravi Sasi Enterprises, with the inspiration and support given by my husband who is a practicing advocate and talented writer. Recently I decided, with the idea given by my husband and encouragement and blessings of several eminent persons like
Dr. Lakshmi Sahgal, Sri V. R. Krishna Iyer, Sri B.P. Jeevan Reddy, et al who consented to be on the Advisory Board, to print and publish a fortnightly law journal to report world law decisions and developments under the title Law Animated World. And with my husband I. Mallikarjuna Sharma as Editor,
I brought out some trial issues of the same also. Along with the first trial issue I had given an application dated 16-08-2004 to the Concerned Magistrate for Newspapers enclosing application in Annexure III to the Registrar of Newspapers of India for verification of title. I requested the Magistrate who happens to be a Deputy Commissioner of Police to process the same expeditiously so that a title verification letter can be got by me soon. Such verification letter is said to be essential to me for giving a declaration concerning the proposed newspaper before the Concerned Magistrate. I had also sent a letter to the Registrar of Newspapers for India (Respondent 2 herein) dated 16-08-2004, apprising him of my application in this regard and enclosing a copy of it as well as of the trial issue of the journal.
3. But my application to Respondent 1 herein dated 16-08-2004 with Annexure III (for verification of title) had not been forwarded by him to the Office of the Registrar of the Newspapers for India, New Delhi and as such I have not got any response/verification letter from them even till date. After waiting for about 2 months, and causing enquiries in the meanwhile with the personnel in the office and also the person of the Magistrate concerned, I was convinced that the Magistrate concerned was demanding some user-charges which are not sanctioned by law and that he is refusing to send my application for verification of title to the Registrar of Newspapers for India until such user-charges are paid by me. As such I wrote him a letter-notice dated 16-10-2004 protesting against such conduct by him. Therein I made it clear to him that
I am required only to give a declaration before him as per Section 5 of the Press and Registration of Books Act, which has to be transmitted by him to the RNI (R-2 herein). The process of verification of title seems to have been introduced to prevent multiplicity of newspapers with one and the same title and is only a preliminary and aid to the requisite legal provision of Section 5. However, Respondent 1 has not carried out even the preliminary act of forwarding my application for verification and already two months have elapsed. He (R-1) was withholding the transmission of this preliminary application in Annexure III only because he insists on my payment of user-charges and he cited one G.O. Ms. 601 (Finance), dated 22-05-2002 [P-6] as giving him the authority and power in this connection.
4. With much difficulty I was able procure a copy of that G.O. [P-6] but I did not find any mention therein about any need to pay user-charges in connection with registration of newspapers. So I made it clear to the Respondent 1 in my above letter-notice that - his office slip [P-7] requiring me to pay “Rs. 2000/- user-charges for ‘police clearance certificate’ for declaration…” seems to be wholly arbitrary and illegal; that no restrictions could be imposed on press freedom, which receives constitutional protection under Article 19 and any reasonable restrictions to it have to be made by a law of the parliament alone; that in the instant case no such restrictions or requirements are made or specified by any law of the parliament and hence his action in not forwarding my application for verification of title to the Registrar of Newspapers for India so far was completely unconstitutional and illegal; and that I need not pay any user-charges to anybody for the exercise of my constitutionally protected fundamental right to speech and expression. Further I informed him that his action was causing a lot of anxiety, tension and mental worries as also loss of reputation and credit in the society to me. As such I requested him to immediately correct his blatant and arbitrary mistake and send my application for verification of title forthwith to the Registrar of Newspapers of India, with a request to him (RNI) to process my application and verify the title expeditiously - preferably within one week of its receipt by him. I also expressed my hope that he - Respondent 1 - would certainly do so and also reply to me within two weeks of receipt of this letter-petition by him about any further action he might take in this regard. I also mailed another letter dated 18-10-2004 to the RNI (R-2 herein) complaining about the illegality by R-1 and also requested him to protect press freedom by suitably advising the Magistrate concerned. I also stressed therein that it is high time that the authority and powers of verification and attestation of declarations be taken away from the police department and entrusted to any other departments. As such I requested him to cause verification of the said title on his own and issue me a verification letter for my proposed law fortnightly at the earliest.
5. However, I regret to submit that so far I have not received any response or reply from either of the two respondents 1 & 2 [except P-10]. As such I am effectively and for no fault of mine deprived of my right to publish a regular newspaper and avail the facilities extended for the publication and dissemination of such newspapers such as postal concessions. Also this whole process is causing me a lot of anxiety, mental worries and loss of reputation and credit in society. Further the chances of increasing the prestige and circulation of the proposed law reporter by enrolling more and more number of subscribers and canvassing for liberal donors and advertisers are also adversely affected since the lack of regularization of the journal is discouraging several interested readers and prospective donors/advertisers from enthusiastically supporting our proposed journal. All this has caused a definite and considerable financial loss to me. All this due to the action and/or inaction of Respondents 1 and 2, which is a certain and clear infringement of my freedom of expression guaranteed by Article 19 (1) of our Constitution.
6. I am advised to submit that freedom of press is embodied in the freedom of speech and expression guaranteed by Article 19 (1) of our Constitution and it could only be interfered with in the manner indicated in Article 19 (2), that is by way of any ‘reasonable restrictions’ in the interests of the sovereignty and integrity of India, the security of state, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. And it seems such reasonable restrictions could be imposed only by a parliamentary law. Further the publication of books and newspapers is governed by a central enactment, The Press and Registration of Books Act, 1867 (hereinafter referred to as the ‘1867 Act’), which is ‘an Act for the regulation of printing-presses and newspapers, for the preservation of copies of books and newspapers printed in India, and for the registration of such books and newspapers’. Section 5 (2) of the 1867 Act requires “the printer and publisher of … newspaper [to] appear in person or by agent authorized … before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published…” But the Proviso to Section 6 of the 1867 Act lays down that “the declaration shall not … be … authenticated unless the Magistrate is, on inquiry from the Press Registrar, satisfied that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State.” As such a practice has developed of sending the application of the printer and the publisher of a proposed newspaper first to the Registrar of Newspapers for India for verification of title. And only on verification of the title proposed the concerned Magistrate takes on file the declaration by such printer and publisher and authenticates it. This is a preliminary process introduced to avoid multiplicity of newspapers bearing the same or similar names and thus avoid any undesirable future litigation, injuries to the interests of concerned third parties and confusion to the public. I am advised to say that it is obviously a duty of the Magistrate concerned to get verified the title and satisfy himself about its availability for the particular applicant printer/publisher. It would not be fair or just for the Magistrate to, for the costs of carrying out his own duty, charge the applicant. Anyway there is nothing in the 1867 Act or the rules made under it either by the Central Government or the State Government stipulating any such user-charges.
7. I am legally advised to further state that it is colonial legacy and mindset to continue to endow some top police officers with the status and powers of executive magistrates and appoint them as Magistrates for Newspapers. The British imperialists in order to suppress the revolt of the people against their oppressive and plundering rule might have devised and implemented such policing measures but it is quite unwarranted to continue such practice anywhere in independent India. Fortunately this seems to be not the case all over India or perhaps even in all centres in our State. In Karnataka only a Judicial Magistrate can be appointed as Magistrate for Newspapers. Even as per the now existing law (1867 Act), Magistrate is interpreted as “any person exercising the full powers of a Magistrate and includes a Magistrate of Police.” But nowadays there are no Magistrates of Police; as per Section 3 of the old Criminal Procedure Code any reference to Magistrate of Police was to be deemed as reference to Presidency Magistrate and as per Criminal Procedure Code, 1973, this only means a Metropolitan Magistrate (Section 3). In such circumstances, I am advised to say that Respondent 1 has no jurisdiction at all to entertain my application for verification of title (for my subsequent filing of declaration). As such the Respondent 2 has to discharge the entire obligation and burden of directly verifying the title, as also receiving the subsequent declaration that would be filed by me. Or else Respondents 3 and 4 together have to devise some other way and appoint only Judicial Magistrates as Concerned Magistrates for Newspapers and authorize them to receive declarations filed by me or persons similarly situated as me.
8. In such circumstances and for the said reasons, I submit that the action of Respondents 1 and 2 in not verifying the title for my proposed newspaper as also the appointment and continuance of Respondent 1 as Magistrate for Newspapers is unjust, unconstitutional and illegal and needs appropriate intervention by this Court for the following among other
G R O U N D S:
(i) The actions of the respondents are in violation of the law of the land and infringe the fundamental rights laid down in our Constitution.
(ii) As per Press and Registration of Books Act, 1867, only a Magistrate having full powers can be a Magistrate concerning Newspapers and as such Respondent 1 being not such a Magistrate, has no jurisdiction to act so.
(iii) The imposition of user-charges or any other charges is not authorized by or even contemplated in the 1867 Act or the rules made under it. As such requiring the petitioner to pay any user-charges or withholding her application for verification of title on the ground of non-payment of user-charges is arbitrary and illegal.
(iv) The right to publish newspapers is part of press freedom, which in turn is part of freedom of speech and expression guaranteed by Article 19 (1) of the Constitution, which can only be interfered with by any ‘reasonable restrictions’ as per 19 (2). As such any other sort of interference by the State Government in this regard is unconstitutional and hence ab initio void.
(v) Right to life also contemplates right to live with dignity and freedom and is not mere animal existence. In the instant case the action of the respondents has already caused me a lot of strain, mental worry, financial loss and damage to reputation. As such the action of Respondents 1 and 2 infringes my right under Article 21 also.
(vi) The inaction, commissions and omissions of R-1 and R-2 are quite arbitrary and as such violate Article 14 too.
(vii) Such other grounds as may be urged at the hearing of this petition.
9. I submit that I am constrained to approach this Honourable Court to provide a quick and inexpensive remedy in this case by way of its extraordinary jurisdiction under Article 226 of the Constitution since I do not have any other alternative remedy in this regard.

10. I submit that I have not filed any other writ, suit or proceeding regarding the subject matter of this writ petition, in this Honourable Court or in any other court or legal forum.
INTERIM RELIEF:
11. In such circumstances, it becomes just and necessary that this Court may be pleased to direct Respondent 2 herein to immediately verify the title for my proposed newspaper as per the titles-status as on 16-08-2004, the date of my first application for verification of title, so as to enable me to file a declaration at the earliest before Respondent 2 or before any duly qualified Magistrate to be appointed by Respondents 3 and 4 or by this Court; and pass such other order or further orders as this Honourable Court may deem fit and proper in the circumstances of the case to meet the ends of justice.
FINAL RELIEF:

12. In the circumstances narrated and for the reasons stated supra, I submit my request that this Honourable Court may be pleased to issue an appropriate writ, order or direction, particularly a writ in the nature of Mandamus, to declare that any imposition of user-charges by Respondents 1 and 3 as regards the process of verification of title and filing and receiving of declarations from publishers and printers in connection with newspapers as also the appointment and continuance of top police officers by investing them with executive magistracy as Magistrates for Newspapers is unconstitutional, illegal and ab initio void, with a consequent direction for refund of all the user-charges collected so far in this connection to the respective payers/declarants; award costs of the writ petition to me and pass any such order or further orders as this Honourable Court may deem fit and proper in the circumstances of the case.
7th & last page:
Corrections:

Solemnly affirmed and signed in my presence here at
Hyderabad on this Monday, the 6th day of December 2004. D E P O N E N T.

Before me :


ADVOCATE : HYDERABAD.