SPECIAL ARTICLE
Concentration of Media Ownership and
the Imagination of Free Speech
Smarika Kumar
How can one make sense of the increasing
concentration of media ownership on the one hand and
the idea of freedom of speech on the other? Is there an
inherent conflict between laws that set out to protect
the freedom of speech and expression under Article
19(1)(a), and the freedom to trade under Article 19(1)(g)
of the Constitution? The author looks at the relationship
of media ownership and media infrastructure, examines
how the government has used policies that regulate
newspaper infrastructure, and traces some narratives of
conflict between the two rights of freedom of speech
and expression and the freedom to trade.
The author would like to thank Sukumar Muralidharan and Vibodh
Parthasarathi for their comments and feedback and the Indian Institute
of Advanced Study, Shimla, for initiating a dialogue around the power of
communication that helped shape this paper.
Smarika Kumar (smarika@altlawforum.org) is a lawyer and researcher
at the Alternative Law Forum, Bengaluru.
Economic & Political Weekly EPW april 23, 2016 vol lI no 17
Newspaper industry enjoys two of the fundamental rights, namely the
freedom of speech and expression guaranteed under Article 19(l)(a) and
the freedom to engage in any profession, occupation, trade, industry
or business guaranteed under Article 19(1)(g) of the Constitution,
the first because it is concerned with the field of expression and com-
munication and the second because communication has become an
occupation or profession and because there is an invasion of trade,
business and industry into that field where freedom of expression is
being exercised.
—Justice Venkataramiah in Indian Express Newspapers (Bombay)
Pvt Ltd and Others v Union of India1
T
he concentration of media ownership has been a grow-
ing concern in the past few years, particularly during
the 2014 parliamentary elections when the increasing
influence of media was perceived.2 Shortly after the elections,
the corporate giant Reliance took over managerial and edito-
rial control of Network 18, which runs a sizeable portion of
news media in India, both English and regional,3 sparking fear
that the Indian media was moving towards the type of concen-
trated ownership typified by Rupert Murdoch’s media empire.4
Before this, in 2011, UTV Software Communication was ac-
quired by the Walt Disney Company, leading to the ownership
of multiple English and Hindi language entertainment chan-
nels in India in a single entity.5
What does such concentration of media ownership mean for
the freedom of speech and expression in the country? Free-
dom of Speech and Expression is embodied as a Fundamental
Right under Article 19(1)(a) of the Constitution. However, this
is subject to reasonable restrictions under certain specified
grounds under Article 19(2). The concentration of ownership
of media implies that the influence and power which result in
distribution of news and culture among other forms of expres-
sion and opinion-building in the country is now vested in only
a handful of people—those who own or control the media.
Freedom of speech and expression plays a pivotal role in
opinion building and consequently political configurations in
a representative democracy. But what does this idea of free-
dom embody, and what kind of claims are accounted for in the
legal understanding of such freedom in India? Is the preven-
tion of concentration of media ownership one such claim for
freedom of speech and expression? At the other end, the free-
dom to trade becomes an obvious claim to consider when the
issue is that of ownership of media, since ownership is patently
a concern of business and trade. How can one make sense of
the concentration of media ownership and the idea of freedom
of speech in a framework of right to trade and its limitations?
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SPECIAL ARTICLE
These are some of the questions that this paper attempts to
address by mapping the narrative of laws that set out to protect
the freedom of speech and expression under Article 19(1)(a),
and the freedom to trade under Article 19(1)(g) of the Consti-
tution. The paper explores the juxtaposition of the right to
freedom of trade against the right to freedom of speech and
expression, two rights that have often been constituted as two
opposing armies in the battleground of the Supreme Court.
The paper traces some such narratives of conflict to illustrate
the manner in which free speech is imagined in the laws of In-
dia. Attempts to regulate media infrastructure through legal
and policy decisions form the axis that holds these narratives
of conflict together in this paper.
I begin by looking at the relationship of media ownership
and media infrastructure, and how attempts have been made
to use regulation of newspaper infrastructure as a significant
governance tool for media ownership. In the present paper,
the term “newspaper infrastructure,” or more broadly “media
infrastructure” is used to refer to financial resources like
newsprint used in the making of newspapers, in order to dis-
tinguish them from the newspaper or media content. In course
of this, I argue that media infrastructural regulation is unique
as a regulatory method insofar as it succeeds in linking the
issue of concentration of ownership with ideas of freedom
of speech and expression for both the speakers/writers and
viewers/readers of media.
However, regulation of media infrastructure also throws up
questions with varied understandings of what it means to have
freedom of speech and expression. I analyse these questions
and their nuances through a few cases where regulation of
media infrastructure has been attempted, questioned, and
subsequently brought before the Supreme Court for resolution.
The manner in which the court navigates through these ques-
tions provides a profound insight into the claims that vie with
each other to find a place in the constitution of freedom of
speech and expression.
Media Ownership and Media Infrastructure
It is contended that what is aimed at by the impugned legislation is
the avoidance of concentration of ownership without interfering with
healthy competition between equals equally situated.
—Supreme Court in Sakal Newspapers v Union of India, opinion given
by Justice Mudholkar6
In 1956, Parliament enacted the Newspaper (Price and Page)
Act to regulate the number of pages a newspaper can have ac-
cording to the price charged, and to prescribe the number of
supplements to be published. Under Section 3 of the act, the
Daily Newspaper (Price and Page) Order, 1960 was also passed
by the government to regulate the sizes and area of advertise-
ments in relation to other matters published in the newspaper.
Both the act and the order essentially sought to regulate
the infrastructure, that is the cost–revenue calculus on which
a newspaper is made possible—the number of pages and
advertisements.
The idea behind such a law to regulate newspaper infra-
structure was to prevent big, established newspapers from
128
being the dominant source of news. It was argued by the
government that established newspapers are most sought out
for advertisements and they generate maximum revenues, and
can therefore afford to bring out low-priced editions. Smaller,
or newer newspapers that do not attract as much advertise-
ment are then forced to make their consumers pay a higher
proportion of costs as these would be only very partially offset
by advertising revenue. This means that consumers have to
pay higher prices for smaller or newer newspapers than for
the bigger, established newspapers. This constitutes unfair
competition as the big (cheaper) newspapers have a larger cir-
culation. As many people purchase and read big newspapers,
these become the dominant sources of news, leading to
concentration of sources in entities owned by relatively few
people. The act and the order were therefore recommended by
the Press Commission to ensure that such concentration of
ownership does not occur.
What was the need to regulate concentration of newspaper
ownership through the regulation of newspaper infrastruc-
ture specifically? This question is interesting because it reflects
a trend. There have been other cases where the government
has sought to regulate media ownership through the regula-
tion of media infrastructure.
For example in 1972, the government came up with a news-
print policy that specified a cap on the consumption of news-
print by newspapers via issue of import licences. Newspapers
were not allowed to increase their number of pages beyond 10
even if this fell under the admissible newsprint quota. Addi-
tionally, a single “common ownership unit,” defined as a news-
paper establishment or concern owning two or more news
interest newspapers including at least one daily irrespective of
the centre of publication and language of such newspapers,
was prevented from starting new newspapers even within the
authorised quota of newsprint. By regulating circulation
through the limitation on number of pages, and preventing
owners from setting up new news publications, the govern-
ment could prevent a single entity from being the dominant
source of news.
In 1981, the government imposed an import duty on news-
print under Section 12 of the Customs Act, 1962. Under the
scheme, the price of newsprint sold to big newspapers, that is,
newspapers with a circulation over 50,000, would include a
15% ad valorem duty. On the other hand, the price of news-
print sold to medium newspapers, that is, newspapers with a
circulation of 15,000–50,000 would include only 5% ad valo-
rem duty. Lastly, small newspapers with a circulation of less
than 15,000 would be exempt from import or customs levies.
This classification of newspapers as big, medium, and small al-
lowed differentiation of the cost of newsprint for each category
that would reflect in the final cost of producing a newspaper.
Due to levy of higher import duties on big and medium news-
papers, the selling price of a copy of a big and that of a medium
newspaper would be proportionally increased. In a situation of
price-sensitive demand, this was likely to reduce their circula-
tion. As a result, smaller newspapers would be able to compete
with bigger and medium newspapers.
april 23, 2016 vol lI no 17 EPW Economic & Political Weekly

These policy and legislative measures to regulate a scarce
commodity, namely, newsprint, resulted in disputes being
brought before the Supreme Court such as Sakal Newspapers v
Union of India in 1961, Bennett Coleman and Others v Union of
India in 1972,7 and Indian Express Newspapers v Union of India
in 1984, respectively. In each of these cases, big newspapers
challenged the legislation or policy in question and argued
that by effectively curtailing the circulation of their newspaper,
their constitutional rights to free speech and expression were
being violated. In each of these cases, the Supreme Court
struck down the legislation or policy in question by declaring
them to be in violation of Article 19(1)(a), and therefore,
unconstitutional.
In 1995, the regulation of infrastructure was attempted to
prevent concentration of media ownership, but this time in the
area of television broadcast. The case of Secretary, Ministry of
Information and Broadcasting v Cricket Association of Bengal,8
wherein the issue revolved around whether every person held
an equal right to utilise airwaves to broadcast television
signals as part of their guaranteed right to freedom of speech
and expression under Article 19(1)(a), was brought before the
Supreme Court. The dispute in this case was between Prasar
Bharati, the public broadcaster, and ESPN, a privately-owed
sports channel, regarding telecast of a series of cricket matches:
The latter claimed an exclusive right to do so through the utili-
sation of scarce airwaves; Prasar Bharati contested such a
right. In this case, the Supreme Court, quite unlike the logic it
had employed in deciding the newspaper cases, held that the
right of one entity to use airwaves for broadcast could not be
understood as a fundamental right, since airwaves, because of
their nature as public property, need to be allotted in such a
manner that everyone has a comparable opportunity to broad-
cast and receive information via television.
Why did the government persist in its attempts to regulate
media ownership through infrastructural regulation? Perhaps
because other methods of regulating ownership, such as com-
petition law, do not necessarily make the link between owner-
ship and diversity of sources. Competition law takes into account
only the media owner, or the speaker’s/writer’s use of the
media, and not the media consumer, or the viewer’s/reader’s
interactions with the media. Its objective is to ensure low
barriers to entry for newer media owners in the media market,
and has little to do with media consumers in the market.
However, media infrastructural regulation governs not only
the activities of owners of the media, but also the scope of
reception of information through such media. By acknowledg-
ing that the reach of information disseminated through media
depends on infrastructure, the method of ownership govern-
ance via regulation of infrastructure makes the very impor-
tant link between ownership of media, which is an issue at the
speaker/writer end, and the diversity (or lack thereof) of the
sources that actually inform a viewer/reader.
In such a scenario, the governance of media ownership
through regulation of media infrastructure throws up a unique
set of claims about freedom of speech and expression, both
from the viewpoint of the originator of information, and that
Economic & Political Weekly EPW april 23, 2016 vol lI no 17
SPECIAL ARTICLE
of the receiver of information. Attempts to regulate newsprint,
for instance, rearrange the position of the newspaper, the
reader, and the government with respect to each other to
create a novel configuration. This new configuration presents
a varied set of claims regarding muffling free speech and what
it means to have right to free speech and expression. The fol-
lowing sections of this paper examine these varied, and often
opposing claims, arising out of regulation of media infrastruc-
ture in the cases before the Supreme Court.
To Speak and How Much to Speak
The first set of opposing claims arising from regulation of
media infrastructure circle the question of what constitutes
boundaries to the right to freedom of speech and expression.
The regulation of newspaper infrastructure like newsprint
leads to limited space for the originator of information, or
media owner to express his/her views and opinions. This has
been argued to be a violation of the right to freedom of speech
and expression under Article 19(1)(a). In Bennett Coleman case,
Justice A N Ray, delivering the majority opinion held:
It appears to us that in the present case, fixation of page limit will not
only deprive the petitioners of their economic viability but also restrict
the freedom of expression by reason of the compulsive reduction of
page level entailing reduction of circulation and denuding the area of
coverage for news and views.
The reduction in the area of coverage for news and views by
fixing the number of pages and preventing common owner-
ship units from starting more than two newspapers was seen
as an assault on the right to freedom of speech and expression.
This constriction in area of coverage for news and views
raises the question of what volume of speech can be protected
under the right to freedom of speech and expression. The
court has often held that Article 19(1)(a) protects an unlimited
volume of speech. Justice Ray declared: “Freedom of speech
and expression is not only in the volume of circulation but
also in the volume of news and views.” This understanding
that all kinds of speech in any volume constitutes freedom of
speech is one claim on what such a freedom of speech and
expression means.
However, is the right to freedom of speech and expression
upheld only when there are absolutely no restrictions on how
much a single person can speak, or can it also be upheld when
how much a person can speak is limited to a certain quantity?
The freedom of speech and expression includes a right to
speak and express, but in the light of scarcity of newsprint, for
instance, for a newspaper does this also include a right to
speak and express as much as one wants without any fetters?
In Sakal newspapers, the government put forward the prop-
osition that it does not, thereby framing an opposing claim on
the freedom of speech. That a newspaper is allowed to speak
more only at an increased selling price is a fetter on how much
a newspaper is allowed to speak. But the government does not
see this restraint at this level as a violation of freedom of speech
and expression. Similarly, in Bennett Coleman, the government
seeks “to justify the reduction in the page level to 10 not only
on the ground of shortage of newsprint but also on the grounds
129
SPECIAL ARTICLE
that these big dailies devote high percentage of space to
advertisements and therefore the cut in pages will not be
felt by them if they adjusted their advertisement space.”
By asking newspapers to adjust the volume of their speech
covering news and views against advertisements in a limited
space, the government implies that freedom of speech can en-
vision restrictions on the volume or quantity of speech made,
especially in a case where media infrastructure like news-
print is scarce.
Justice K K Mathew in his minority opinion in Bennett
Coleman explains the rationale for this opposing claim quite
succinctly:
A common ownership unit has already been given the opportunity
to express itself by the media of two or more newspapers. If a common
ownership unit were to go on acquiring or sponsoring new newspa-
pers and if the claim for quota for all the newspapers is admitted, that
would result in concentration of newspaper ownership and will accel-
erate the tendency toward monopoly in the newspaper industry.
Justice Mathew’s rationale finds some parallel with the
government’s pleadings in Sakal, whereby it seeks to justify the
regulation on the quantity of speech not under Article 19(1)(a)
or Article 19(2), but rather under Article 19(1)(g) or Article 19(6)
of the Constitution by saying that “the legislation in question
does not directly or indirectly deal with the subject of freedom
of speech and expression and that consequently no question
of the violation of the provisions of Art 19(1)(a) at all arises.”
The government thus sees the right to speak arising out of
Article 19(1)(a), but once everyone is allowed to speak, the
quantity or volume of speech a speaker/writer makes—whether
it be in the form of advertisements or coverage of news and
views—is seen as a business decision under Article 19(1)(g), and
not as a free speech issue. It is the scope of such business deci-
sion that the government looks to limit under Article 19(6).
Consequently, the government argues that increase in volume
of speech made due to printing of advertisements “is a trading
activity” and needs to be differentiated from an activity which
would fall under Article 19(1)(a). The opposing claim of the
government on free speech therefore stems out of understand-
ing volume of speech made, as a decision under Article 19(1)(g)
and not Article 19(1)(a).
This is quite in contrast to what the Court held in Sakal,
whereby it allowed an unlimited volume of speech to be
claimed under Article 19(1)(a). This approach was also reflected
in Indian Express in 1984 when it was held: “We are of the view
that all commercial advertisements cannot be denied the pro-
tection of Article 19(1)(a) of the Constitution merely because
they are issued by businessmen.” Linking volume of speech
made to Article 19(1)(a) is justified on the basis of the impor-
tance of advertisements in sustaining the big newspaper busi-
ness: “If as a result of reduction in pages the newspapers will
have to depend on advertisements as their main source of in-
come, they will be denied dissemination of news and views.
That will also deprive them of their freedom of speech and ex-
pression. On the other hand, if as a result of restriction on page
limit the newspaper will have to sacrifice advertisements and
thus weaken the link of financial strength, the organisation
130
may crumble. The loss on advertisements may not only entail
the closing down but also affect the circulation and thereby
impinge on freedom of speech and expression.”
In essence, the limitation on the quantity of speech is seen
in violation of freedom of speech by the majority of court
rulings because such limitation is seen to affect the business
of speech and expression, namely, sustenance of newspapers.
What the court seemingly failed to appreciate, however, is
that some newspapers draw more advertising revenue than
others, and are therefore able to sustain their business on
advertisements, while smaller newspapers have to rely on
financial means other than advertisements to sustain them-
selves. Why are then the financial means of sustenance for big
newspapers, namely, advertisements, protected under free-
dom of speech and expression here, while not the financial
means for sustenance of smaller newspapers? The majority of
court rulings seemed to ignore this question.
The claim that the volume of speech made is protected
under Article 19(1)(a) places the right to use media infrastruc-
ture to make speech by speaker/writer, whether it is news
and views, or advertisements, on an equal footing. The court
also seems oblivious about whether newspaper readers are
equally interested in advertisements as they may be in news
and views.
This shows divergence with the claim that the volume of
speech made is an activity determined under Article 19(1)(g)
of the Constitution, whereby newspaper advertisements are
seen as a trading activity and not a part of freedom of speech
and expression. The printing of commercial advertisements on
limited newsprint and number of pages is seen to displace
relevant coverage of news and views, which unlike advertise-
ments are protected under the freedom of speech and expres-
sion. The application of the framework of Article 19(1)(g) to
commercial advertisements in newspapers, in contrast to
Article 19(1)(a), thus manages to treat speech of all news-
papers—whether big or small—in a more equal manner, by
not giving the means of financial sustenance of one kind of
newspaper protection under right to freedom of speech and
expression over another kind of newspaper. Implicitly, this
also prioritises and protects the reader’s interest in pursuing
news and views over advertisements.
To Disseminate and How Far to Disseminate
A claim to enlarge the volume of speech by diminishing the circula-
tion raises the problem of reconciling the citizens’ right to unfettered
exercise of speech in volume with the community’s right to undimin-
ished circulation. Both rights fall within the ambit of the concept of
freedom of speech.
—Supreme Court in Bennett Coleman and Others v Union of India,
dissenting opinion by Justice Mathew
The second set of opposing claims arising from regulation of
media infrastructure are well illustrated in Justice Mathew’s
statement above. These claims circle the determination of
how far something which has been said can be disseminated
or propagated under the freedom of speech and expression.
In case of newspaper infrastructure regulation, this becomes
an issue of circulation. The question then is not just whether
april 23, 2016 vol lI no 17 EPW Economic & Political Weekly

the right to circulate newspapers is a part of freedom of
speech and expression, but whether the right to circulate as
much volume as one wants is also a part of freedom of speech
and expression.
As far as newspapers are concerned, the answer of the
Supreme Court to both these questions has been yes, thereby
embodying a claim on freedom of speech and expression
that includes an unlimited volume of circulation as part of
Article 19(1)(a). In Sakal, for example, the court held:
The right to propagate one’s ideas is inherent in the conception of
freedom of speech and expression. For the purpose of propagating his
ideas every citizen has a right to publish them, to disseminate them
and to circulate them. He is entitled to do so either by word of mouth
or by writing. The right guaranteed thus extends, subject to any law
competent under Art 19(2), not merely to the matter which he is enti-
tled to circulate, but also to the volume of circulation. In other words,
the citizen is entitled to propagate his views and reach any class and
number of readers as he chooses subject of course to the limitations
permissible under a law competent under Art 19(2).
Why is it so obvious to the Court that the right to unlimited
volume of circulation flows from the right to mere circulation?
In the above paragraph, it is quite unclear what rationale
the Court is using to justify a right to unlimited volume of
circulation, outside of merely stating that a right to circulate
speech, unless such speech falls under Article 19(2), is
protected under Article 19(1)(a). One can only say that the
Court seems to confuse the scope of both these questions: The
question is of whether there exists a right to circulate speech
versus the question of whether there exists a right to circulate
an unlimited volume of speech, and tries to answer one with
the same justification it uses for another. Nevertheless, it
does establish both the right to circulate as well as the right to
circulate an unlimited volume as part of freedom of speech
and expression.
But how is such a claim of unlimited volume of circulation
for everyone to be realised as part of Article 19(1)(a) when the
media infrastructure in question is a scarce commodity?
In Cricket Association of Bengal, this question was raised
with respect to television broadcast airwaves. Since airwaves
constitute a scarce media infrastructure, who should be
allowed to use them to disseminate their speech and expres-
sion? Such a question, unlike the Court’s opinion in Sakal,
itself presupposes a vision of freedom of speech and expres-
sion that does not include a right to circulation of an unlimit-
ed volume. In support of this vision, Justice B P Jeevan Reddy
says in his judgment:
The right of free speech and expression includes the right to receive
and impart information. For ensuring the free speech right of the citi-
zens of this country, it is necessary that the citizens have the benefit of
plurality of views and a range of opinions on all public issues. A suc-
cessful democracy posits an ‘aware’ citizenry. Diversity of opinions,
views, ideas and ideologies is essential to enable the citizens to arrive
at informed judgment on all issues touching them. This cannot be pro-
vided by a medium controlled by a monopoly— whether the monopoly
is of the State or any other individual, group or Organisation.
This statement is significant in two ways: First, it accounts
for the viewer’s/reader’s interest in the manner in which media
infrastructure is used. One of the interests of the information
Economic & Political Weekly EPW april 23, 2016 vol lI no 17
SPECIAL ARTICLE
receiver is having a choice of a diverse number of speakers/
writers/broadcasters from which she can pick without
constraints who to watch or what to read. The recognition of
this interest enables Justice Reddy to realise the second point
of significance: That media control to the exclusion of certain
speakers/broadcasters/writers need not be perpetuated only
by the state, it can also be perpetuated by individuals or com-
mercial groups.
The Viewer’s/Reader’s Interest
Why is this significant? The court in Sakal, as well as in the
majority opinion in Bennett Coleman, is obsessed with the
speaker/writer’s ambit of freedom of speech when it comes to
dissemination of speech, while ignoring the viewer/reader’s
interest in this. True, Justice Ray in Bennett Coleman does
acknowledge that “The freedom of the press embodies
the right of the people to read,” but he stops there without
going into the thornier question of the right of people to read
which sources.
This thornier question is however posed by the government
in the same case when it asserts that freedom of speech and
expression under the Constitution is not so much for the ben-
efit of the press as for the benefit of all people. By asserting
this, the government actually makes a distinction between
the interest of the press in the speaker/writer role, and the
interest of all people in the viewer/reader role. This distinc-
tion implies that the interest of all people does not end simply
at the fact that they are able to read whatever the press
produces as part of its speaker/writer interest. The interest of
all people goes beyond mere right to read into also questions
of, for example, the right to read from a diverse choice of
sources. The government is then claiming that the freedom of
speech and expression also embodies this right to read from a
diverse choice of sources. Conversely, this also implies the
right of a diversity of voices to access and express themselves
through mass media.
However, only one judge on the bench, Justice Mathew,
tackles this claim in his minority opinion. He initially frames
it in terms of individual versus social interest: “As I said, the
freedom of speech protects two kinds of interest. There is an
individual interest, the need of men to express their opinion
on matters vital to them and a social interest in the attain-
ment of truth so that the country may not only accept the wisest
course but carry it out in the wisest way.” But this can also be
framed as a distinction between the interests of speaker/writer,
who is seen embodied in the individual and the interest of
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Ph: 41561062/63
131
SPECIAL ARTICLE
viewer/listener, which corresponds to the community or social
interest. He does this later while quoting the American
philosopher Alexander Meiklejohn: “Now, in the method of
political Government, the point of ultimate interest is not the
words of the speakers, but the minds of hearers... The welfare
of the community requires that those who decide issues shall
understand them.”
How does accounting for viewer/readers/community inter-
ests change the idea of freedom of speech and expression? For
Justice Jeevan Reddy in Cricket Association of Bengal, it brings
in “plurality of views and a range of opinions on all public issues”
as a claim on freedom of speech. For the government in Sakal,
it brings in the concern to “prevent the rise of monopolistic
combines so that newspapers may have fair opportunities of
freer discussion,” as a claim on freedom of speech. These claims
see circulation and receipt of news and views from diverse and
antagonistic sources as part of freedom of speech and expression.
The threat to such diversity of sources is, of course, concentration
of media ownership in a few private hands. This brings us to
the second significant aspect of Justice Jeevan Reddy’s state-
ment: That media control need not be perpetuated only by the
state, it can also be perpetuated by individuals or commercial
groups. Accounting for viewer/reader/community interests,
therefore, enables one to recognise that media control can be
executed outside of state domain, in private hands.
Like Justice Jeevan Reddy in Cricket Association of Bengal,
the government in Sakal recognises that newspaper control
can be also executed by media monopolies and not just via
government control. According to the government, such regu-
lation manages to “promote further the right of newspapers in
general to exercise the freedom of speech and expression,” and
therefore “neither the intention nor the effect of the operation
of the law is to take away or abridge the freedom of speech and
expression of the petitioners.” This is because the government
sees the regulation as a limitation upon what it deems an
aspect of newspaper trading, namely, volumes of circulation
and advertising. Even in Bennett Coleman, the government
claims that what it is regulating is newsprint, which is
concerned with the business aspect of newspapers, and not
the newspaper, which would fall under freedom of speech.
A similar claim by the government in Indian Express urges
that the levy of customs duty on newsprint should be seen
as taxation of a trading good, since “the taxable event was
the import of goods within the customs barrier” and not
an attempt to abridge freedom of speech and expression. In
this manner, all of them place their claims for regulation of
media infrastructure within Article 19(1)(g) and 19(6) frame-
works, and not under Article 19(1)(a) framework. Essentially
they all try to make a case for differentiating between restric-
tions on free speech and restrictions on trade where media
is concerned.
In Bennett Coleman, Justice Mathew expands upon this
difference by distinguishing the concepts of “regulation” and
“abridgement” of Article 19(1)(a). “Abridgement” of this right,
according to him, would refer to Article 19(1)(a)’s violation
under Article 13(2) of the Constitution, which prohibits the
132
state from making any law which takes away or abridges the
fundamental rights under the Constitution. Regulation, on the
other hand, is a wider concept that may not always be abridge-
ment but rather have only a secondary impact on freedom of
speech. He says: “Art 19(1)(a) guarantees to the citizens the
fundamental right of the freedom of speech and Art 19(2) enu-
merates the type of restrictions which might be imposed by
law. It does not follow from this that freedom of expression is
not subject to regulations which may not amount to abridg-
ment. It is a total misconception to say that speech cannot be
regulated or that every regulation of speech would be an
abridgment of the freedom of speech.”
What then is the precise meaning of “abridge” under
Article 13(2)? To pin this, Justice Mathew relies on Meiklejohn’s
comment about the First Amendment of the American Consti-
tution: “First, let it be noted, that by these words (First Amend-
ment) Congress is not debarred from all action upon freedom of
speech. Legislation which abridges that freedom is forbidden,
but not legislation to enlarge and enrich it” (Meiklejohn 1965: 19).
Justice Mathew holds that this statement applies “with equal
force to Art 19(1)(a) read with Art 13(2),” and that any law or
policy which actually “advances the freedom of speech cannot
be considered as an abridgment of it.” He goes on to explain how
the government newsprint policy in fact advances the freedom
of speech: “The provision in question does not say that the pro-
prietor or publisher of a newspaper should reduce its circula-
tion. If the provision had said that the proprietor or publisher
must reduce the circulation of the newspaper, one could have
understood a complaint of abridgment of the freedom of speech.
The provision, in effect, only tells the proprietor/publisher of
the newspaper: ‘maintain the circulation at the present level or
increase if it you like by reducing the page level.’ Would this
amount to an abridgment of the freedom of speech? I think
not. The freedom of speech is only enriched and enlarged.”
Interpretation of ‘Abridge’
By taking the viewer/reader/community rights into account,
Justice Mathew thus managed to employ an interpretation of
“abridge” under Article 13(2) that provides consistency in his
reasoning for the volume of circulation being a matter gov-
erned under Article 19(1)(g) and not under Article 19(1)(a).
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 SPECIAL ARTICLE

This interpretation of “abridge” enables him to sanction a reg-
ulation that places limits on the volume of circulation of news-
papers because it recognises the dangers of newspaper control
by private hands.
Such reasoning can be contrasted with the majority opinion in
Bennett Coleman, which would rather see newspaper control
as the exclusive domain of the government than also subject
to influence of private commercial groups. Since here the
Court sees the volume of circulation as a subject matter
under Article 19(1)(a) and not as a business decision under
Article 19(1)(g), it sees restrictions on circulation as not only
violative of Article 19(1)(a), but also in violation of Right to
Equality under Article 14:
The policy of the Government is to level all papers at 10 pages. It tends
to treat unequals as equals. It discriminates against those who by
virtue of their standing status and service on all India basis acquired
a higher page level in the past […] In our view, the Newsprint Control
has now been subverted to newspaper control.
The Court therefore sees attempts to prevent private com-
mercial groups’ control of newspapers as a form of discrimination
against these very private commercial groups, namely, big news-
papers. Merely because big newspapers have had more pages
in the past (many of them dedicated to advertising), the Court
assumes that these newspapers are “unequals”—inherently
different from other newspapers—and their need for newsprint
to cater to their advertisers must be fulfilled. Consequently, the
government regulatory policy is seen to promote the subs-
criptions of smaller newspapers at the cost of subscriptions for
big newspapers:
It is true that the Government relied on a historical reason. It is said to
prevent big newspapers from getting any unfair advantage over news-
papers which are infant in origin. It is also said that the Government
policy is to help newspapers operating below 10 pages to attain
equal position with those who are operating above 10 page level But this
intention to help new and young newspapers cannot be allowed to
strangulate the freedom of speech and expression of the big dailies.
However, can big newspapers really be said to be victims of
discrimination? In the previous section, I discussed how the
Court justified protection for commercial advertising under
Article 19(1)(a) because it enables the coverage of news and
views on other pages by sustaining the newspaper’s financial
viability. It must be mentioned here that the apex Court also
justifies protection for commercial advertising under Article
19(1)(a) by holding that advertisements allow larger circula-
tion for the newspaper by reducing its price. But why should
big newspapers be given protection under freedom of speech
and expression for their volume of circulation notched up by
advertisements, when the same protection is not offered to the
volume of circulation of smaller newspapers, which are not
subsidised by advertising? Is the voice of smaller newspapers
not worthy of the same protection as the big ones?
It cannot be said that discrimination is perpetuated when
the objective is to magnify the softer voices of the smaller
newspapers so that they can be heard over the louder voices of
the big newspapers. It is true that big newspapers cater to a
larger clientele. But that is made possible only because big
newspapers consume larger quantities of the scarce resource
of newsprint as they allocate proportionately more space
to advertisements, which others do not. To say that a larger
clientele is the reason for justifying their larger consumption
of newsprint or using more pages for advertisements is to con-
fuse the consequence for the cause.
Sadly, this is what the majority of the court does in Sakal
and Bennett Coleman. Justice Ray says for the majority opinion,
“The impeached policy violates Article 14 because it treats
newspapers which are not equal equally in assessing the needs
and requirements of newsprint.” But this is not an issue about
the “need” and “requirements” of a newspaper. It is about how
far a newspaper is willing to use the scarce resource of news-
print for advertisements to magnify its own voice over others,
and whether there should be a limit on that. In saying that the
government regulation on newsprint is discriminatory against
big newspapers, the majority opinion actually overlooks the
fact that big newspapers are already in an advantageous posi-
tion over smaller ones when it comes to circulation and being
read by more people. This move in fact perpetuates discrimi-
nation rather than removing it.
Conclusions
I have discussed in this paper the claims that view volume of
speech as part of the freedom of speech and expression. This
results in a vision of freedom of speech and expression that focuses
on the protection of the rights of individual speakers against the
state. This is what I have termed as the “claim of Article 19(1)
(a).” I have also discussed how other claims do not see both
these volume questions as part of freedom of speech and ex-
pression, but rather as a trading decision. This results in a dif-
ferent vision for freedom of speech and expression, which takes
into account the rights and interests of the listener or reader.
This is what I have termed as the “claim of Article 19(1)(g).”
Within Indian legal thought, these two claims seem to compete
to define the limits of consolidation of media ownership.

Notes
1 Indian Express Newspapers (Bombay) Pvt Ltd
and Others v Union of India AIR1986 SC515.
2 Paranjoy Guha Thakurta, “Media Ownership
Trends in India,” The Hoot, 3 July 2012, available
at http://thehoot.org/web/Mediaownership-
trendsinIndia/ 6053-1-1-16-true.html.
3 Anuradha Raman, “Big ED in the Chair,” Outlook
India, 14 July 2014, available at http://www.out-
lookindia.com/article/Big-ED-In-TheChair/291311.
4 Betwa Sharma, “Corporate Takeover Raises
Indian Media Fears,” Al Jazeera, 12 June 2014,
available at http://www.aljazeera.com/indepth/
features/2014/06/corporate-takeover-raises-
indian-media-fears-20146111197873720.html.
5 Press Trust of India, “CCI Okays UTV Software-
Walt Disney Merger,” Business Standard, 25 August
2011, available at http://www.business-stand-
ard.com/article/companies/cci-okays-utv-soft-
ware-walt-disney-merger-111082503001_1.html.
6 Sakal Newspapers v Union of India, AIR1962 SC305.
7 Bennett Coleman & Co & Others v Union of
India, AIR1973 SC106.
8 Secretary, Ministry of Information and Broad-
casting v Cricket Association of Bengal and
Others, AIR1995 SC1236.
Reference
Meiklejohn, Alexander (1965): Political Freedom,
Oxford University Press.

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