SECTION 5 OF PRESS AND REGISTRATION OF BOOKS ACT
But over the decades the procedure and the law instead of being simplified for the benefit of the people have been made more complicated by our brown overlords. Bureaucratic interference, inefficiency and corruption - mainly due to the political corruption and degeneration at the top government levels and in the socio-economic system of the country - have enormously increased and the law and rules have been more complicated and rendered more user-unfriendly. So now when I went and approached the Commissioner of Police office, they demanded Rs. 2000/- user-charges to process our application for title clearance! And I have already posted about the details regarding our challenge by way WP 22585/04 and the subsequent developments.
Now mainly in view of the enormous delay in this process of giving declaration, we got an idea to attack the very provision requiring the same. Not that we were happy with that requirement earlier even. Always it seemed to us odd that what restriction was not there on book publication was placed on publication of newspapers. But you see unless some injustice pinches or pains you sufficiently hard you will not awaken to it - that is human nature. Earlier also we were not happy, but that was a mere small hurdle which could be overcome without much delay and expenses. So it did not pinch us hard. But now the situation is different. I heard of publishers who in their anxiety to speed up things shelled out tens of thousands of rupees bribes even in addition to these user-costs, etc.
So when I broached the topic with our senior, late Sri V. Venkataramanaiah, and intimated about our intention and plans to initiate a public interest litigation challenging the constitutional validity of Section 5 of the Press Act, he immediately agreed with that. Not only that he volunteered to be the first petitioner - suggested that he should be the first petitioner though Prof. Chandrasekhar Rao, Balamani publisher and others could also be there along with him. Later he had carefully scrutinized the draft of the affidavit of the PIL (to be) given by the publisher Balamani on behalf of all the petitioners and suggested meaningful changes too. So, the PIL was filed in the last week of April 2005 and on the last working day before summer vacations i.e. on 30-04-2005 we got the relief of an interim order directing the Commissioner of Police as also the RNI to expedite the process of title clearance, registration etc. and pursuant to that only this paper has been registered by the RNI within 4-5 months thereafter. Regrettably, Sri V. Venkataramanaiah garu had passed away on 17-03-2006 but the PIL WP is still pending disposal!
Now I am posting the Writ Petition affidavit filed by us in the PIL WP 9025/2005 hereunder:
W.P. No. 9025 of 2005
V. VENKATARAMANAIAH, S/o Late V. Kalyana Sundaram,
Age: 77 years; Occupation: Advocate, G-4, Plot 85A,
Varasiddhi Nivas, Road No. 11, Film Nagar, Hyderabad - 500 033;
Prof. R.V.R. CHANDRASEKHARA RAO, S/o Late R.V. Ramana
Murthy, Age: 72 years; Occupation: Teaching, Plot 22, Radhe Nagar
Colony, near H.S. Darga, Old Bombay Road, Hyderabad;
- M.T. KHAN, S/o Late M.B. Khan, Age: 72 years, Occupation:
Journalist, 21-5-409, Puranapul Gate, Hyderabad - 500 064;
- I. BALAMANI, w/o I. Mallikarjuna Sharma, Age: 39 years,
H. No. 6-3-1243/156, D. Sanjeevaiah Nagar, M.S. Makta,
Opposite Raj Bhavan, Hyderabad - 500 082. … PETITIONERS.
A N D
The Union of India, represented by the Principal Secretary,
Ministry of Information and Broadcasting, New Delhi.
- Ministry of Law, represented by its Principal Secretary, New Delhi.
The Registrar of Newspapers for India (RNI), Wing 2,
West Block 8, R.K. Puram, New Delhi - 110 066.
Government of Andhra Pradesh, represented by its
Chief Secretary, A.P. Secretariat, Hyderabad - 500 022.
- The Concerned Magistrate for Newspapers, presently Joint/
Deputy Commissioner of Police, Special Branch, Office of theCommissioner of Police, Basheerbagh, Hyderabad - 500 029. ... RESPONDENTS.
* * *
AFFIDAVIT FILED BY THE PETITIONER :
I, Smt. I. Balamani, wife of I. Mallikarjuna Sharma, Age: 39 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:
I am the 4th petitioner herein and, as such, well acquainted with the facts of the case. I and other petitioners herein are filing this writ petition in public interest, aggrieved by the serious infringements to freedom of speech and expression for bringing out a newspaper by Sections 5, 6 and the consequent provisions of the Press and Registration of Books Act, 1867, which amount to unreasonable restrictions on our fundamental rights guaranteed by Article 19, and violations of Articles 21 and 14, of the Constitution. I am deposing to this affidavit on my behalf, as also on behalf of the other petitioners herein duly authorized by them to do so, to the best of my information, knowledge and belief, and that I believe to be true.
The 1st petitioner herein is a senior advocate and former Advocate General of Andhra Pradesh. He also acted as Chairman of the Committee to organize the inaugural function of LAW ANIMATED WORLD. He has great concern for the protection and promotion of civil rights in the country. The 2nd Petitioner is a Retired Professor of Politics and Retired Vice Chancellor of Andhra Pradesh Open University. He is also on the Advisory Board of the proposed law journal, LAW ANIMATED WORLD. The 3rd Petitioner is a Retired teacher, senior journalist and well-known civil liberties leader. I, the 4th petitioner, am the printer and publisher of the proposed law fortnightly LAW ANIMATED WORLD. The description of the Respondents herein is as given in the cause title.
- 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. About 10 months back I had decided, with the encouragement of my husband 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, with my husband as the Editor. Along with the first trial issue I had given an application dated 16-08-2004 to the Concerned Magistrate for Newspapers enclosing an application in Annexure III to the Registrar of Newspapers of India for verification of title. I requested the Magistrate who happens to be a Joint/Deputy Commissioner of Police (Respondent 5 herein) to process the same expeditiously so that a title verification letter can be got soon. Such verification letter is said to be essential 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 3 herein) dated 16-08-2004, apprising him of the application in this regard and enclosing a copy of the trial issue of the journal. But the application to Respondent 5 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 even after two months on the ground that Rs. 2000/- user-charges have not been paid. The 5th Respondent herein cited one GO Ms. No. 601, Finance (BG) Department, dated 22-05-2002 of Government of Andhra Pradesh, as empowering him to collect such user charges. When that GO was procured with difficulty it was found that there was not any mention therein about any need to pay user-charges in connection with registration of newspapers. So thereupon I made a complaint dated 16-10-2004 to the Respondent 5 in which it was clarified that his requiring me to pay “Rs. 2000/- user-charges for ‘police clearance certificate’ for declaration…” was 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 the constitutionally protected fundamental right to speech and expression. Further I also 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 had requested that he immediately correct his blatant and arbitrary mistake and send the 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 mailed another letter dated 18-10-2004 to the RNI (R-3 herein) complaining about the illegality committed by R-5 and requested that he protect press freedom by suitably advising the Magistrate concerned. Therein I also stressed that it was 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 it was requested that he (RNI) cause verification of the said title on his own and issue a verification letter for the proposed law fortnightly at the earliest.
- However, when no response was received from either of the respondents 3 or 5 herein even after waiting for a month and a half, I was constrained to file a writ petition - WP 22585 of 2004, in this Honourable Court attacking the requirement of user-charges by the respondent 5 herein and also challenging the very jurisdiction of respondent 5 to entertain my applications as the concerned Magistrate for Newspapers since it was bad in law for top police officers to be endowed with such magisterial powers and in any case the Press and Registration of Books Act, 1867 only contemplated a judicial Magistrate to act as the Magistrate for Newspapers. I also assailed the policing methods of verification of the antecedents, etc. of proposed publishers. Thereupon, a single Judge of this Honourable Court was pleased to pass an interim order dated 30-12-2004 in WPMP No. 29644 of 2004 filed in that WP 22585/2004 by which the second respondent therein [R-3 herein] was “directed to verify the title of the proposed newspaper, as per the titles’ status as on 16-08-2004 and inform the same to the petitioner.” Pursuant to that both the R-1 therein [R-5 herein] and R-2 [R-3 herein] took further steps as a result of which the Registrar of Newspapers for India [R-3 herein] verified the title status and declared by his verification letter No. APENG 02630/01/1/2005-TC dated 25-01-2005 addressed to R-5 herein that the title LAW ANIMATED WORLD was available for publication and was approved in my favour.
- Pursuant to a copy of that verification letter being received, and due to the WP 22585/2004 being still pending final disposal, and since from months I was planning to get released a regular issue of the journal on the National Martyrs Day of 23 March 2005, I, after prior intimation to the Respondent 5 herein by a letter of my husband dated 11-03-2005, went personally to the office of R-5 herein on 17-03-2005 to give the needed declaration to start the newspaper and waited there from 12 Noon to 5 PM. However, Respondent 5 was on that day absent in the office due to his preoccupation with bandobust duties in connection with the visit of the Congress (I) President Smt. Soniya Gandhi to the City, whereupon I personally appeared before Mr. Ismail, the Deputy Commissioner of Police to whom my first application dated 16-08-04 was addressed and who was actually looking after the entire proceedings relating to filing of declarations, etc. Later the Declaration dated 17-03-2004 and duly signed by me was lodged in the office of Respondent 5 and proper receipt was also obtained on the office/personal copies of the declaration, covering letter etc. retained by me. But, though it was made clear and requested in the covering letter thereof that my declaration may be authenticated immediately in view of the inaugural function planned by me on 23-03-2004, to this day such authentication seems to have not been done or at any rate not communicated to me. And, since the inaugural function was planned months ahead with some luminaries being invited to grace it, I had to and did hold it as per schedule, releasing the first issue of the regular journal in that function on 23-03-2004. But now, since so far an authenticated declaration has not been sent to me, I am in a fix as to bringing out the next issues of the journal and as such my rights to publish and promote the journal are seriously harmed - temporarily extinguished even.
I am advised to and do submit here that in this background the cardinal question of infringement of freedom of press not only by the executive but also by the Press and Registration of Books Act, 1867 (hereinafter referred to as ‘the 1867 Act’) itself comes to the fore. It is well known 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. In the instant case, since the publication of books and papers (including newspapers) is governed by a central law, it seems such reasonable restrictions could be imposed only by a parliamentary law. The 1867 Act 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 ostensibly 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. However, it means and results in restrictions on the freedom of speech and expression insofar as the same may not be exercised (through the newspaper) until and unless such declaration is filed and authenticated. Usually it takes months for this process to be completed by the existing bureaucratic machinery. In the instant case even after 10 months this process has not been completed in consequence of which the petitioner is put to great hardship, loss of prestige and reputation and mental tension and worries in addition to physical trauma and monetary losses attendant thereon. It may be pointed out that all these restrictions are not in any way 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’.
I may attempt here to present a brief overview of the 1867 Act and the subsequent legislation affecting it, which I submit would go to substantiate our contentions that the 1867 Act and the subsequent legislation and executive measures result in gross infringement of our fundamental rights of freedom of speech and expression guaranteed by Article 19, of equality before law by Article 14 and of right to life by Article 21. The 1867 Act was made by the British colonial rulers mainly in order to secure information as to and collect the publications made in the country from time to time and mainly concentrates on books. The word newspaper is not even used in the original Act or in the Statement of Objects and Reasons leading to that enactment. However, it is therein that a prior declaration was for the first time sought for ‘printed periodical work containing public news or comments on public news’ and the Section 5 of the Act which is couched in negative language and also penalties of fine and imprisonment up to 6 months are also imposed for contravention of that section in Section 15 of the Act. Obviously the British imperialists introduced the section to curb the growing national awakening and movement in the country for which the newspapers served as a chief vehicle. This is a pre-constitution law and there was no constitution in those times but autocratic rule by the imperialists clothed in various legislative and executive garbs. Unfortunately the very same autocratic provisions are being continued in post-independent India by the present rulers too. However, it is obvious that this patent restriction is not even adverted to have been made for “the sovereignty and integrity of India, the security of state,” etc. This 1867 Act was chiefly amended before independence by the Press Law Repeal and Amendment Act, 1922 (14 of 1922) by which for the first time the word ‘newspaper’ was substituted for ‘printed periodical work containing public news or comments on public news’ in Section 5 thereof.
After independence this repressive law, a part of the ‘lawless laws’ incessantly castigated by our national leaders who fought for our independence has been shamelessly adapted by two adaptation orders - A.C.A.O., 1948 and A.L.O., 1950 - by the Central Government [President of India]. However, it is submitted here itself that such adaptation under Article 372 cannot in any way save a law as ‘existing law’ if it is contravening the requirements of Article 13 due to any patent infringements of the fundamental rights embodied in the Constitution. In 1947 a Press Law Enquiry Committee was instituted by the Central Government which was required to go deeply and comprehensively into the entire history and development of press law in India and submit suitable suggestions for improvement. It submitted its report in 1948 on the basis of which a Press and Registration of Books (Amendment) Bill, 1952 was introduced in the Parliament. However, the same was withdrawn in August 1955 since by that time a Press Commission has been constituted by the Union Government and it had submitted its first, sufficiently comprehensive, report. On the lines of the First Press Commission Report, the Press and Registration of Books (Amendment) Bill, 1955 was introduced in the Parliament in August 1955 and was adopted after lengthy but insufficient and uninformed discussion and debate that took place for a few hours on 21 November 1955 and for a few minutes the next day.
I submit here that it is pertinent to note that the then Minister of Information and Broadcasting, Dr. Keskar, while moving the above-said Press and Registration of Books (Amendment) Bill, 1955 had clearly stated: “I would like to make at the very outset one thing clear, because it has been brought to my notice by representatives of the proprietors, and then also by the comments published in certain papers, more especially outside the country, that this is an indirect way of controlling the press. It is clear that the present is purely a kind of statistical measure…. But what I want to make clear is that the object of the Bill and the appointment of a central registering authority are concerned purely with the statistical and business side of newspapers.” However, the Honourable Minister as well as the Members of the Parliament missed the principal point of prior declaration being required for newspapers only, in contrast to books for which no such restriction was placed. Further there was no clause-wise discussion of the Bill and it was almost unthinkingly and aggregately adopted. I submit that we petitioners are not against any central registering authority but only against prior restraints - pre-publication restraints being imposed on newspapers by Sections 5 and 6 and consequent penal provisions of Section 15 of the Act. Thereafter the Act 26 of 1960 also brought in some further amendments in the above sections and the still later amendment Acts are not much relevant for the purpose of this petition.
- That the original State of Objects and Reasons of the 1867 Act contains not a mention of the word ‘newspaper’ or even ‘periodical printed work’ and is exclusively devoted to collecting and securing books published in India, that too by purchasing it from the publishers, shows that Sections 5, 6 and 15 of the Act suffer from the vice of over-inclusiveness in addition to being affected by undue discrimination. While no pre-publication restraints are imposed on books, which also could be published almost daily without any prior declarations being given, unjustly and arbitrarily prior declarations were sought for newspapers. Thus equal protection of law is denied, no reasonable classification is not apparent in the enactment, in fact no such classification is made and hence the Sections 5, 6 and 15 are infringing Article 14 and liable to be struck down on that count too.
- I have already submitted that the Sections 5, 6, 15 etc. of the 1867 Act are a serious infringement on the rights guaranteed by Article 19 (1) since the restrictions due to the requirement of prior declaration are not made 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’ which considerations alone render any reasonableness to the restrictions. Further given the generally accepted position of law that life does not mean mere animal existence but encompasses the entire physical, mental, intellectual and spiritual development process of life of human beings, the restraints imposed by these sections also infringe the right to life and personal liberty guaranteed by Article 21 of the Constitution and the procedure of law - 1867 Act - can in no way be considered ‘reasonable, fair and just’. As such the impugned Sections 5, 6, 15 etc. of the 1867 Act are liable to be struck down as seriously infringing Articles 14, 19 and 21 of the Constitution.
- In such circumstances and for the said reasons, I submit that the impugned Sections 5, 6 and 15 etc. of the Press and Registration of Books Act, 1867 are unjust, unconstitutional and hence liable to be declared invalid and ab initio void by this Court for the following among other
G R O U N D S:
The impugned sections 5, 6, 15 etc. of the 1867 Act are pre-constitution restrictions on the freedoms of the people being callously continued by the government of the day for vested interests and against the public interest in general. Their continued existence in the statute-book is a clear violation of the fundamental duties imposed by Article 51A of the Constitution one of which is ‘to cherish and follow the noble ideals which inspired our national struggle for freedom’.
The said Sections 5, 6, 15 etc. suffer from the vice of over-inclusiveness and lack of reasonable classification with manifest arbitrariness in their making and as such hit by Article 14.
The impugned sections 5, 6, 15 etc. of the 1867 Act are a serious infringement of Article 19 (1) of the Constitution since they are not any restrictions in the fields allowed by Article 19 (2), in addition to their total unreasonableness.
The impugned sections 5, 6, 15 etc. of the 1867 Act are a serious infringement of Article 21 of the Constitution too, since the procedure contemplated therein is not ‘reasonable, just or fair’.
The impugned sections 5, 6, 15 etc. of the 1867 Act are not saved by mere adaptation as per Article 372 since they are hit by the requirements of Article 13.
Such other grounds as may be urged at the hearing of this petition.
I submit that we petitioners are constrained to approach this Honourable Court for adequate remedy in this case by way of its extraordinary jurisdiction under Article 226 of the Constitution since we do not have any other alternative remedy in this regard.
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.
In such circumstances, it becomes just and necessary that this Court may be pleased to direct Respondent 5 herein to immediately authenticate the declaration lodged in his office by me, the 4th petitioner herein, for bringing out the law fortnightly - LAW ANIMATED WORLD - with effect from the date of lodging i.e. 17-03-2004 or alternatively the Court permit me the 4th petitioner to continue publication of the journal pending disposal of this writ petition; 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.
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 the Sections 5, 6 and 15 etc. of the Press and Registration of Books Act, 1867 as unjust, unconstitutional and hence invalid and ab initio void; award costs of the writ petition and pass any such order or further orders as this Honourable Court may deem fit and proper in the circumstances of the case.
10th & last page:
Hyderabad on this Tuesday, the 19th day of April 2005. D E P O N E N T.
Before me :
ADVOCATE : HYDERABAD.