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The Court however, took the view that the direct object of the order was preventive detention and not the infringement of the right of freedom of speech and expression, which was merely (1)[1951] S.C.R.451, 455. 132 consequential upon the detention of the detenu and therefore upheld the validity of the order. Ratio |
It was, therefore, urged by the learned Attorney General that the object of the impugned Act was only to regulate certain conditions of service of working journalists and other persons employed in the newspaper establishments and not to take away or abridge the right of freedom of speech and expression enjoyed by the p... |
article 13 (2) of the Constitution. ARG |
It was contended, on the other hand, on behalf of the petitioners that the Court has got to look at the true nature and character of the legislation and judge its substance and not its form, or in other words, its effect and operation. ARG |
It was pointed out that the impugned Act viewed as a whole was one to regulate the employment of the necessary organs of newspaper publications and therefore related to the freedom of the Press and as such came within the prohibition. ARG |
Reliance was placed in this behalf on the following passage in Minnesota Ex Rel. ARG |
Olson (1): " With respect to these contentions it is enough to say that in passing upon constitutional questions the Court has regard to substance and not to mere matters of form, and that, in accordance with familiar principles, the statute must be tested by its operation and effect." The following observations of Mah... |
In relation to Constitutional prohibitions binding a legislature it is clear that the legislature cannot disobey the prohibitions merely (1)(1930) ; , 708; ; , 1363. Ratio |
(2)[1954] S.C.R. 674, 683. 133 by employing indirect method of achieving exactly the same result. Ratio |
Therefore, in all such cases the court has to look behind the names, forms and appearances to discover the true character and nature of the legislation. Ratio |
" The impugned Act is as its long title shows an act to regulate certain conditions of service of working journa lists and other persons employed in newspaper establishments and in the very forefront of the Act, the , is by section 3 made applicable to working journalists with certain modification in connection with th... |
The rest of the provisions contained in ch. Ratio |
II concerned themselves with the payment of gratuity, hours of work and leave and fixation of wages of the working journalists. Ratio |
The regulation of the conditions of service is thus the main object which is sought to be achieved by the impugned Act. Ratio |
Chapter III of the Act applies the provisions of the , and the Employees ' Provident Funds Act, 1952, to all the employees of the newspaper establishments wherein twenty or more newspaper employees are employed and covers working journalists as well as other employees in the employ of the newspaper establishments. Rati... |
The miscellaneous provisions contained in ch. Ratio |
IV are designed merely to implement or to carry out the provisions of the main part of. Ratio |
the Act and they do not make any difference so far as the effect and operation of the Act is concerned. Ratio |
If this is the true nature of the Act, it is impossible to say that the Act was designed to affect the freedom of speech and expression enjoyed by the petitioners or that was its necessary effect and operation. Ratio |
It was conceded in the course of the arguments that if a general law in regard to the industrial or labour relations had been applied to the press industry as a whole no exception could have been taken to it. Ratio |
If the matter had rested with the application of the , to the working journalists or with the application of the , or the Employees ' Provident Fund,% Act, 1952, to them no exception could have been taken to this 134 measure. Ratio |
It was, however, urged that apart from the application of these general laws to the working journalists, there are provisions enacted in the impugned Act in relation to payment of gratuity, hours of work, leave and fixation of the rates of wages which are absolutely special to the press industry qua the working journal... |
It is obvious that the enactment of this measure is for the amelioration of the conditions of the workmen in the newspaper industry. Ratio |
It would not be possible for the State to take up all the industries together and even as a matter of policy it would be expedient to take the industries one by one. Ratio |
Even in regard to the workmen employed it would be equally expedient to take a class of employees who stand in a separate category by themselves for the purpose of benefiting them in the manner contemplated. Ratio |
This circumstance by itself would therefore not be indicative of any undue preference or a prejudicial treatment being meted out to that particular industry, the main object being the amelioration of the conditions of those workmen. Ratio |
It could not also be said that there was any ulterior motive behind the enactment of such a measure because the employers may have to share a greater financial burden than before or that the working of the industry may be rendered more difficult than before. Ratio |
These are all incidental disadvantages which may manifest themselves in the future working of the industry, but it could not be said that the Legislature in enacting that measure was aiming at these disadvantages when it was trying to ameliorate the 135 conditions of the workmen. Ratio |
Those employers who are favourably situated, may not feel the strain at all while those of them who are marginally situated may not be able to bear the strain and may in conceivable cases have to disappear 'after closing down their establishments. Ratio |
That, however, would be a consequence. Ratio |
which would be extraneous and not within the contemplation of the Legislature. Ratio |
It could therefore hardly be urged that the possible effect of the impact of these measures in conceivable cases would vitiate the legislation as such. Ratio |
All the consequences which have been visualized in this behalf by the petitioners, viz., the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners ' freedom to choose the means of exercising the right, likelihood of the independence of the press being u... |
Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, it would not be possible to strike down the legislation as having that effect and operation. Ratio |
A possible eventuality of this type would not necessarily be the consequence which could be in the contemplation of the Legislature while enacting a measure of this type for the benefit of the workmen concerned. Ratio |
Even though the impugned Act enacts measures for the benefit of the working journalists who are employed in newspaper establishments, the working journalists are but the vocal organs and the necessary agencies for the exercise of the right of free speech and expression, and any legislation directed towards the ameliora... |
The real difficulty, however, in the way of the petitioners is that whatever be the measures enacted for the benefit of the working journalists neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners. Rati... |
The gravamen of the complaint of the petitioners against the impugned Act, however, has been the appointment of the Wage Board for fixation of rates of wages for the working journalists and it is contended that apart from creating a class of privileged workers with benefits and rights which were not conferred upon othe... |
This contention will be more appropriately dealt with while considering the alleged infringement of the fundamental right enshrined in article 19(1) (g). Ratio |
Suffice it to say that so far as article 19(1) (a) is concerned this contention also has a remote bearing on the same and need not be discussed here at any particular length. Ratio |
Re: Article (19(1) (g). Ratio |
The fundamental right of the petitioners herein is the right to carry on any occupation, trade or business. Ratio |
This freedom also is hemmed in by limitations which are to be found in article 19(6), which in so far as it is relevant for our purposes enacts: " Nothing in sub clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in th... |
regard to not what is relevant for such fixation but to what the Board deems relevant for the purpose; and (d)in providing for a procedure which does not compel the Board to conform to the rules under the , thus permitting the Board to follow any arbitrary procedure violating the principle of audi alteram partem. Ratio |
2.The restrictions enumerated above in so far as they affect the destruction of the petitioners ' business exceed the bounds of permissible legislation under article 19(1)(g). Ratio |
The unreasonableness of the restriction is further sought to be emphasized by pointing out that under section 12 of the impugned Act, the decision of the Board is declared binding on all employers, though the working journalists axe not bound by the same and are entitled, if they are dissatisfied with it, to agitate fo... |
The test of reasonable restrictions which can be imposed on the fundamental right enshrined in article 19(1)(g) has been laid down by this Court in two decisions: In Chintaman Rao vs The State of Madhya Pradesh(1) Mahajan J. (as he then was) observed at p. 763 : "The phrase "reasonable restriction" connotes that the li... |
138 of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. Ratio |
The word " reasonable " implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Ratio |
Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in article 19(1)(g), and the social control permitted by clause (6) of article 19, it must be held to be wanting in that quality." ... |
(1) and in Ch. PRE |
Tika Ramji vs State of ' Uttar Pradesh & Ors. PRE |
The State of Madras vs V. G. Rao (3) was the next case in which this phrase came to be considered by this Court and Patanjali Sastri C. J. observed at p. 606: " This Court had occasion in Dr. Khare 's case (4) to define the scope of the judicial review under clause (5) of article 19 where the phrase " imposing reasonab... |
It is important in this context to bear in mind that the test of reasonableness, where ever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases. Ratio |
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion (1) ; , 811. (3) ; , 606, 607. Ratio |
(2) ; , 446. Ratio |
(4) ; 139 of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. Ratio |
" This criterion was approved of in State of West Benqal vs Subodh Gopat Bose & Others (1) where the present Chief Justice further expressed his opinion that the fact of the statute being given retrospective operation may also be properly taken into consideration in determining the reasonableness of the restriction imp... |
The appointment of a wage board for the purposes of fixing rates of wages could not be and was not challenged as such because the constitution of such wage boards has been considered one of the appropriate modes for the fixation of rates of wages. Ratio |
The , can only apply when an industrial dispute actually arises or is apprehended to arise between the employers and the employees in a particular industrial establishment. Ratio |
Though under the amendment of that Act by the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, (36 of 1956), there is a provision for the appointment of a National Tribunal by the Central Government for the adjudication of industrial disputes which in the opinion of the Central Government involve... |
If the wages for the employees of a particular industry have got to be fixed without such an industrial dispute having arisen or being apprehended to arise, the only proper mode of such fixation would be the appointment of wage boards for the purpose. Ratio |
They take the place of Industrial Tribunals or National Industrial Tribunals and are generally constituted of equal number of representatives of the employers and the employees in that particular industry along with a quota of independent member or (1) ; , 626. Ratio |
(2) ; 140 members one of whom is appointed the chairman of the Board. Ratio |
The main grievance of the petitioners, however, has been that the relevant criteria for the fixation of rates of wages were not laid down in section 9(1) of the Act. Ratio |
Section 8 empowered the Central Government to constitute a wage board for fixing rates of wages in respect of working journalists in accordance with the provisions of the Act and section 9(1) directed that in fixing such rates of wages the Board &hall have regard to the cost of living, the prevalent rates of wages for ... |
These criteria, it was contended, were only relevant for fixing minimum rates of wages, ' though the word " minimum " which had been used in the Bill No. 13 of 1955 as introduced in the Rajya Sabha was deleted when the Act actually came to be passed and it was further contended that the capacity of the Industry to pay ... |
It was also contended that the other circumstances which the Board was directed to consider in addition to those specifically enumerated in section 9(1) were such as to the Board may seem relevant thus relegating these circumstances to the subjective determination of the Board with the necessary consequence that no Cou... |
We do not propose to enter into any elaborate discussion on the question whether it would be competent to us in arriving at a proper construction of the expression " fixing rates of wages " to look into the Statement of Objects and Reasons attached to the Bill No. 13 of 1955 as introduced in the Rajya Sabha or the circ... |
There is a consensus of opinion that these are not aids to the construction of the terms of the Statute which have of course to be given their plain and grammatical meaning [See: Ashvini Kumar Ghosh & Anr. Ratio |
vs Arabinda Bose & Anr. Ratio |
(1) and Provat Kumar Kar and others vs William Trevelyan ' Curtiez Parkar It is only when the terms of the statute are ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention of the legislalature. Ratio |
We have already stated in the earlier part of this judgment that the Act was passed with a view to implement the recommendations of the Press Commission 's Report and we have already seen that the concept of minimum wage, as adopted by the Press Commission was not that of a bare subsistence or minimum wage but what it ... |
This was the concept of a minimum wage which was sought to be implemented by the legislature and for that purpose the capacity of the industry to pay was an essential circumstance to be taken into consideration and the deletion of the word " minimum ", if at (1) [1953] S.C.R. I. (2) A.I.R. 1950 Cal. Ratio |
142 all, had the effect of widening the scope of the enquiry before the Wage Board. Ratio |
if the word " minimum " had been used in relation to the rates of wages and the Wage Board in the impugned Act, the wage Board in its deliberations would have been necessarily confined (to a consideration of that aspect alone. Ratio |
But, by the deletion of that wordfrom the context the Wage Board was invested with a power to determine the question of the fixation of rates of wages unfettered by any such limitations and to fix the rates of wages in any pro per manner having regard to the circumstances of the case, whether the resultant wages would ... |
The criteria which were specified in section 9(1) of the Act comprised also the prevalent rates of wages for comparable employments. Ratio |
This criterion had no relation whatever to Minimum wages. Ratio |
Reference may be made in this connection to a decision of the Industrial Court in the case of Nellimarla Jute Mills (1), where it was held that the comparison with rates of waves in other concerns could be undertaken for determining fair wage and the upper limit of wages but not for determining the minimum or floor lev... |
If, therefore, the criterion of the prevalent rates of wages for comparable employments can on a true construction of section 9(1)be considered consistent only with the fixation of rates of wages which are higher than (1) [1053] , 143 the bare subsistence or minimum wage whether they be statutory minimum wage or fair w... |
The capacity of the industry to pay was therefore one of the essential circumstances to be taken into consideration by the Wage Board whether it be for the fixation of rates of wages or the scales of wages which, as we have observed before, were included within the expression " rates of wages ". Ratio |
This was by no means an unimportant circumstance which could be assigned a minor role. Ratio |
It was as important as the cost of living, and the prevalent rates of wages for comparable employments and ought to have been specifically mentioned in section 9(1). Ratio |
The Legislature however, was either influenced in not mentioning it as such by reason of the view taken by the Press Commission in that behalf or thought that the third criterion which was specified in section 9(1), viz., the circumstances relating to the newspaper industry in different regions of the country was capab... |
Even here, there is considerable difficulty in reconciling oneself to this mode of construction. Ratio |
Even if it were thus capable of being included, the minor role assigned to it along with literacy of the population, the popularity of the newspapers, predilections of the population in the matter of language and other circumstances of the like nature prevailing in the different regions of the country would make it dif... |
From that point of view, the criticism of the petitioners would appear to be justified viz., : that it was not made incumbent on the Board to consider the major factor of the capacity of the 144 industry to pay as an essential circumstance in fixing the rates of wages. Ratio |
It is, however, well recognized that the Courts would lean towards the constitutionality of an enactment and if it is possible to read this circumstance as comprised within the category of circumstances relating to the newspaper industry in different regions of the country, the court should not strike down the provisio... |
We are therefore of opinion that section 9(1) did not eschew the consideration of this essential circumstance, viz., the capacity of the industry to pay and it was not only open but incumbent upon the Wage Board to consider that essential circumstance in order to arrive at the fixation of the rates of wages of the work... |
The last criterion enumerated in section 9(1) of the Act was " any other circumstance which to the Board may seem relevant " and it was urged that this was left merely to the subjective determination of the Board and the Board was at liberty to consider the circumstances, if any, falling within this category in its own... |
If the matters were left to be objectively determined then it would certainly be enquired into and the existence or otherwise of such circumstances would be properly scrutinized in appro priate proceedings. Ratio |
The manner in which, however, this criterion was left to be determined by the Board on its subjective satisfaction was calculated to enable the Board to exercise arbitrary powers in regard to the same and that was quite unreasonable in itself. Ratio |
The case of Thakur Raghubir Singh vs Court of Wards, Ajmer & Ors. PRE |
(1), was pointed out as an illustration of such an arbitrary power having been vested in the Court of Wards which could in its own discretion and on its subjective determination assume the superintendence of the property of a landed proprietor who habitually infringed the rights of his tenants. PRE |
The provision was there struck down because such subjective (1)[1953] section C. R. 1049,1052. PRE |
145 determination which resulted in the superintendence of the property of a citizen being assumed could, not be scrutinized and the propriety thereof investigated by higher authorities. PRE |
This argument, however, does not help the petitioners because this criterion is on a par with or ejusdem generis with the other criteria which have been specifically enumerated in the earlier part of the section. PRE |
The major and important criteria have been specifically enumerated and if would be impossible for the Legislature exhaustively to enumerate the other circumstances which would be relevant to be considered by the Board in arriving at the fixation of the rates of wages. Ratio |
In the course of the enquiry the Board might come across other relevant circumstances which would weigh with it in the determination of the rates of wages and it would not be possible for the Legislature to think of them or to enumerate the same as relevant considerations and it was therefore, and rightly in our opinio... |
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