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Indian Express Newspapers (Bombay) Private Ltd. and Ors. etc. etc. Vs. Union of India and Ors.
AIR1986SC515, 159ITR856(SC), (1985)1SCC641
Hon’ble Judges/Coram: E.S. Venkataramiah, JJ, O. Chinnappa Reddy, A.P. Sen.
Date of decision: 06.12.1984
The Petitioners are certain companies, their shareholders and their employees engaged in the business of editing, printing and publishing newspapers, periodicals, magazines etc. They consume in the course of their activity large quantities of newsprint and it is stated that 60% of the expenditure involved in the production of a newspaper is utilized for buying newsprint, a substantial part of which is imported from abroad. Government imposed import duty on newsprint imported from abroad and auxiliary duty under the Finance Act, 1981 on newsprint. Petitioner challenged the imposition of the same in the present writ petition.
- Do newspapers have immunity from taxation?
- Has there been proper exercise of power under Section 25(1) of the Customs Act, 1962?
Leaving aside small newspaper establishments whose circulation may be less than about 10.000 copies a day, all other bigger newspaper establishments being a large industry, are mostly situated in urban areas occupying large buildings which have to be provided with all the services rendered by municipal authorities. Capital investment in many of them is in the order of millions of rupees. Large quantities of printing machinery are utilized by them a large part of which is imported from abroad. They have to be provided with telephones, teleprinters, postal and telegraphic services, wireless communication systems etc. Their newspapers have to be transported by roads, railways and air services. Arrangements for security of their property have to be made. The Government has to provide many other services to them. All these result in a big drain on the financial resources of the State as many of these services are heavily subsidized. Naturally such big newspaper organizations have to contribute their due share to the public exchequer. They have to bear the common fiscal burden like all others.
Newspaper industry enjoys two of the fundamental rights namely the freedom of speech and expression guaranteed under Article 19(1)(a) and the freedom to engage in any profession, occupation, trade, industry or business guaranteed under Article 19(1)(g) of the Constitution. While there can be no tax on the tight to exercise freedom of expression, tax is livable on profession, occupation, trade, business and industry. Hence tax is livable on newspaper industry. But when such tax transgresses into the field of freedom of expression and stifles that freedom, it becomes unconstitutional. As long as it is within reasonable limits and does not impede freedom of expression it will not be contravening the limitations of Article 19(2).
In levying a tax on newspaper industry is that it should not be an overburden on newspapers which constitute the Fourth Estate of the country. Nor should it single out newspaper industry for harsh treatment. A wise administrator should realise that the imposition of a tax like the customs duty on newsprint is an imposition on knowledge and would virtually amount to a burden imposed on a man for being literate and for being conscious of his duty as a citizen to inform himself about the world around him. The public interest in freedom of discussion (of which the freedom of the press is one aspect) stems from the requirement that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves. Freedom of expression has social purpose. In sum, the fundamental principle is the people’s right to know. It is on account of this special interest which society has in the freedom of speech and expression that the approach of the Government should be more cautious while levying taxes on matters concerning newspaper industry than while levying taxes on other matters. In view of the intimate connection of newsprint with the freedom of the press, the tests for determining the vires of a statute taxing newsprint have, therefore, to be different from the tests usually adopted for testing the vires of other taxing statutes. In the case of ordinary taxing statutes, the laws may be questioned only if they are either openly confiscatory or a colorable device to confiscate. On the other hand, in the case of a tax on newsprint, it may be sufficient to show distinct and noticeable burdensomeness, clearly and directly attributable to the tax.
The burden on the petitioners is to satisfy the court that tax has been so burdensome as to warrant it’s being struck down. The Petitioners have succeeded in showing a fall in circulation but whether it is a direct consequence of the customs levy and the increase in price has not been duly established. It may be due to various circumstances. The fall in circulation may be due to the general rise in cost of living and the reluctance of people to buy as many newspapers as they used to buy before. It may be due to bad management. It may be due to change of editorial policy. It may be due to other circumstances which it is not possible to enumerate. Except the synchronizing of time there is nothing to indicate that the slight fall in circulation is directly due to the levy of customs duty. On the material now available, it is not possible for the court to come to the conclusion that the effect of the levy is indeed so burdensome as to affect the freedom of the press. This is a matter which touches the freedom of the press which is, as we said, the very soul of democracy. Due to matter being really significant, Court directed Central Government to reconsider the matter afresh in the light of what has been observed by the court. Moreover, Classification between small, medium and big newspapers is not violative of Article 14 of the Indian Constitution. The object of exempting small newspapers from the payment of customs duty and levying ad valorem duty on medium newspapers while levying full customs duty on big newspapers is to assist the small and medium newspapers in bringing down their cost of production. Such papers do not command large advertisement revenue. Their area of circulation is limited and majority of them are in Indian languages catering to rural sector. There is nothing sinister in the object nor can it be said that the classification has no nexus with the object to be achieved.
In view of the peculiar features of these cases and having regard to Article 32 of the Constitution which imposes an obligation on this Court to enforce the fundamental rights and Article 142 of the Constitution which enables this Court in the exercise of its jurisdiction to make such order as is necessary for doing complete justice in any cause or matter pending before it, we make the following order in these cases:
- The Government of India shall reconsider within six months the entire question of levy of import duty or auxiliary duty payable on newsprint used for printing newspapers, periodicals etc, Necessary information shall be made available to the Central Government to reach to a conclusion.
- If on such reconsideration the Government decides that there should be any modification in the levy of customs duty or auxiliary duty, it shall take necessary steps to implement its decision.
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