Advertising Agencies Association of India Society vs State of Maharashtra

S.C. Dharmadhikari, J. (Oral) - In this Writ Petition, a Notice of Motion was taken out for vacating the interim order dated 14th January, 2009. When that Notice of Motion was listed for hearing, we indicated to both sides that any order in the Notice of Motion is bound to touch the merits of the case and, therefore, it would be convenient to hear and dispose of the main Writ Petition itself. The learned senior counsel appearing for both sides agreed to this course of action. That is how we have listed the Writ Petition with the Notice of Motion for hearing and final disposal. Accordingly, we have heard counsel at length.

By this Writ Petition under Article 226 of the Constitution of India, the petitioners are seeking a writ of certiorari or any other writ, order or direction in nature thereof calling for the papers and proceedings relating to the impugned notice dated 24th Jul;y, 2007, 10th March, 2008, 9th June, 2008 being Annexures B to F and after scrutinizing them as to their legality and validity to quash and set aside the same.

However, the main and principal relief in the Writ Petition is to declare the Maharashtra Act No. XXXII of 2005 to further amend the Bombay Stamp Act, 1958, to the extent the same relates to the agreement in Article 5(h)(A) as unconstitutional, illegal and, therefore, void.

The writ petitioners before us are the Advertising Agencies Association of India, the Executive Secretary of the said Association, the Advertising Agencies providing advertising services to large number of advertisers and its Chairman and Managing Director. Further, in the array of writ petitioners are the Indian Newspaper Society which is claiming to be an apex body of newspaper publishers. It represents almost ninety percent of the newspapers and magazines sold in India. It claims that the members of this Society receive Release order for carrying advertisements from advertisers or advertising agencies appointed by the advertisers for being published in these newspapers and magazines. The fifth petitioner is the Deputy President of this society. The sixth petitioner before us is the Indian Society of Advertisers through its Secretary General and thereafter we have the Indian Broadcasting Foundation. It is an apex body of television channels but registered as a non-profit company under section 25 of the Indian Companies Act, 1956. This body represents thirty eight broadcasters having more than two hundred channels in India. The members of this body also receive Release orders and the advertisements are to be carried through the TV channels. Finally, we have the Times Global Broadcasting Company Limited, a member of Indian Broadcasting Foundation.

The first respondent to the Writ Petition is the State of Maharashtra through the Secretary, Department of Revenue and Forests which is incharge of implementation of the Bombay Stamp Act, now the Maharashtra Stamp Act, 1958 as amended. The second respondent is the Collector of Stamps (Enforcement) a functionary and authority under the Act. He has issued the impugned notice calling upon the petitioner No.1 to inform its members to take steps for enforcement of the impugned provision failing which he would act in terms of the powers conferred in him under the Maharashtra Stamp Act, 1958.

It is stated that the Maharashtra Stamp Act has been amended so as to bring within the broad description of a Instrument styled as agreement or its records or memorandum of an agreement any advertisement on mass-media made for promotion of any product or programme or event with an intention to make profits or business out of it. To the extent relevant for our purpose, the amendment reads thus :

"5 Amendment of Schedule I of Bom. LX of 1958........

(1) & (2) �.............

(G) for clause (h), the following clause shall be substituted, namely:-

(h) A if relating to,--

(I) any advertisement on mass media, made for promotion of any product; or programme or event with an intention to make profits or business out of it.

Two rupees and fifty paise for every rupees 1,000 or part thereof on the amount agreed in the contract subject to minimum of rupees 100 and maximum of rupees 10,00,000.

(ii) conferring exclusive rights of telecasting, broadcasting or exhibition of an event or a film

Two rupees and fifty paise for every rupees 1,000 or part thereof on the amount agreed in the contract subject to minimum of rupees 100 and maximum of rupees 10,00,000.

(iii) specific performance by any person or a group of persons where the value of contract exceeds rupees 1,00,000

Two rupees and fifty paise for every rupees 1,000 or part thereof on the amount agreed in the contract subject to minimum of rupees 100 and maximum of rupees 10,00,000.

(iv) creation of any obligation, right or interest and having monetary value, but not covered under this article.

One rupee for every rupees 1,000 or part thereof on the amount agreed in the contract subject to minimum of rupees 100 and maximum of rupees 10,00,000.

(v) assignment of copyright under the Copyright Act, 1957

Two rupees and fifty paise for every rupees 1,000 or part thereof on the amount agreed in the contract of the value signed for such agreement subject to minimum of rupees 100 and maximum of rupees 10,00,000.

(B) if not otherwise provided for

One hundred rupees

Explanation.- Any duty paid under Article 19, 43 or 51A, as the case may be, shall be adjusted against the duty chargeable under clauses (b), (c), (d), (e), (f) and (g)

The text of this has also been reproduced in paragraph 12 of the Writ Petition.

In challenging the constitutional validity of this amendment, it is urged that there were several meetings convened by the petitioner-association and their office bearers. They met the State Government officials and requested them to withdraw the stamp duty sought to be levied. However, despite several meetings and addressing written representations, the State does not seem to be responding. Rather, some of the members of the petitioner No.1, including M/s. Madison Communication Private Limited received a Notice from the respondent No.2. The notice to the extent relevant reads thus:

"Sub: Recovery of Stamp Duty on advertisement agreements

With reference to above mentioned subject your firm/company, as a Advertising Agency had entered into different contracts with various individuals, firms, companies viz : Brand Ambassador/celebrity, banks, FMCC companies, print media & telecommunication media owner/partner, feature films, live shows, T.V. channels and telecom companies etc. These agreements are or hoardings, billboards, neon-sign boards, agreement between owner or a vacant sites and advertise agents, owner of building and ad agent or advertiser by way of lease/contracts/letters/document etc with prior approval of municipal corporation & state departments.

In this regard your kind attention is invited to the provisions of article 5h(A) of Schedule 1 of Bombay Stamp Act 1958 as amended and came into force w.e.f. 07.05.2005, the above mentioned letter/instrument/document/agreement or as the case may be the contract reflecting instrument is chargeable and liable for payment of stamp duty @ two rupees and fifty paise for every rupees 1000 or part thereof on the amount agreed in the contract of the value signed for such assignment subject to minimum of rupees 100/- and maximum of Rs. 10,00,000/-

You are, therefore, called upon to submit copies of all such agreements/contracts executed on or after 07.05.2005 in connection with agreements executed by your firm/company, within period of two weeks from the date of receipt of this notice for verification and scrutiny of proper stamp duty paid. Failing which it will be presumed that you have nothing to say in the matter and the action to enter premises & inspect certain documents as per section 68 for impounding agreements/instruments/documents/letters or contracts as the case may be u/s 33 & penalty u/s 39 along with recovery proceeding under section 46 of Bombay Stamp Act 1958 will be initiated without further intimation which please note.

Please also note that non payment or short payment of stamp duty is liable for penal action as per provisions made in Section 59 of Bombay Stamp Act 1058."

The petitioners have set out as to how the others are in receipt of similar notices and that fact is stated in paragraph 17 of the Writ Petition.

It is in the aforesaid backdrop that the Writ Petition prays for the above reliefs.

An amendment has also been made in the Writ Petition to add ground No.(vii). It is submitted by way of this amendment that the ad valorem rate of stamp duty for advertisement contracts would have a direct and proximate effect of causing advertisers to place their advertisements in newspapers/forms of mass media whose rates of advertisement are less. It is also very likely that advertisers would choose to advertise through mediums/newspapers and enter into contract outside the territory of the State of Maharashtra so as to avoid levy completely. This would result in a loss of advertising revenue to such newspapers (and other forms of mass media) that are in a position to command a particular rate for their advertisements due to their substantial circulation. The advertisement revenue for such newspapers, in turn, facilitates the vast circulation as it allows for the newspapers to be sold at a subsidized rate. That is how the consumer/recipient is benefited. It is explained as to how by imposition of this ad valorem stamp duty, the newspapers would have to raise their purchase price and thus impacting their circulation. Therefore, the imposition of the stamp duty directly impinges upon the right of the petitioners guaranteed by Article 19(1)(a) of the Constitution of India. The foundation for such plea is that advertisement is commercial speech. That is covered by this constitutional provision and if that is affected, then, the constitutional freedom and right is jeopardized. It is in these circumstances that the challenge is raised to the subject Article.

It is on such a petition that an affidavit has been filed in reply by the second respondent. In the affidavit-in-reply which is filed on 11th November, 2008, the deponent defends the amendment by submitting that the amendment does not seek to levy stamp duty on advertisements in newspapers or on radio or television. All that the respondent No.1 has done by the amendment and the amended provision is to levy stamp duty on advertisements in mass media made for the promotion of any product or programme or event with an intention to make profit or business out of it. The petitioner is deliberately trying to read into this amendment certain words which have not been inserted by the legislature. It is stated that the words "mass media" cover not only newspapers, radio or television, but various other means of means of communication. The advertisements placed by the advertisers in this mass media for the purpose of promoting their products are sought to be covered by the amended Article of the Maharashtra Stamp Act, 1958. By relying upon the constitutional provisions it is submitted that the State is competent to enact the law and as amended. The first affidavit proceeds to state that newspapers, radio and television would be deemed to have been excluded from the Article. Thereafter, what is sought to be contended is that many of the advertising agencies have complied with the notices and disclosed their agreements and other details. Therefore, it is not proper to urge that this amendment is unconstitutional.

Then what we have on record is an affidavit in support of the Notice of Motion. The respondents'' senior counsel submits that we should read this affidavit as an additional affidavit in reply to the Writ Petition.

In that affidavit, it has been stated that the Collector of Stamps (Enforcement - I), Mumbai, who was present in Court at the time of admission of the Writ Petition, made a statement that the State will not levy any duty on advertisements of the petitioners in newspapers, television and radio. That is how recording that statement, the interim order came to be passed. However, the respondents have realized that wrongful advantage and benefit is taken of this statement by the petitioners. The statement is causing enormous revenue loss.

The affidavit seeks to explain that the amendment does not levy stamp duty on advertisements. It is stated that it is too well settled to require any reference to legal principles that the Stamp Act levies duty on instrument and not the transaction embodied and contained in the instrument. If there is a instrument in the form of an agreement executed between advertising agencies and manufacturers of the products or the artistes or the broadcasters/publishers, then, such instruments of agreement are chargeable with the stamp duty. Therefore, relying on section 34 of the Maharashtra Stamp Act, 1958, it is submitted that it would be beneficial for the parties to such instruments to pay proper stamp duty so that the instrument can be admitted in evidence. The present petition is nothing, but an attempt to evade compliance with this mandate. It is submitted that after enactment of the Maharashtra Stamp Act, 1958, the stamp duty is collected on varied instruments. The competence of the State of Maharashtra to levy stamp duty is justified by contending that the said duty is on the agreement/instrument and not on the business. Therefore, no entry in the Union List (List-I of the Seventh Schedule) has been encroached upon. It is submitted that the State, by way of amendment inserted Article 5(h)(A), whereby the State is not levying stamp duty on advertisements in mass media, but on agreements entered into between agencies with the respective clients. That is because these agreements are instruments by which any right or liability is or purported to be created, transferred, limited, extended, extinguished or recorded. The Maharashtra Stamp Act contemplates levying stamp duty on instruments and, therefore, the State is competent to enact the law. Thereafter, what has been highlighted in this affidavit-in-support and with reference to several exhibits is that varied agreements are covered by the statute in question so as to impose and recover stamp duty.

There is a reply affidavit to this Notice of Motion by the petitioners in which it is urged that the State is trying to wriggle out of its earlier stand and statement. Once it is stated on oath that newspapers, radio and television is not covered by the term mass media, now, the State cannot shift its position. The State cannot back out and propound a contrary version. It is, therefore, erroneous to assume that the stamp duty is on the instrument recording the agreement and not on the advertisement. That is a distinction without a difference. Whether the petitioner is taxed by levying stamp duty on the agreement or on the transaction contained therein is one and the same thing. The stamp duty is in the nature of a tax. The levy of stamp duty on agreements pertaining to advertising in/on newspapers, radio and television tantamounts to taxing the transaction itself. This is, therefore, a colourable piece of legislation. The State is seeking to do indirectly what it cannot do directly. Apart from the legislative competence what is urged is that the constitutional mandate enshrined in Article 19(1)(a) of the Constitution of India is violated. Thus, this affidavit is the petitioners'' rejoinder.

It is on the above material that we have to consider the essential controversy.

Mr. Dwarkadas, learned senior counsel appearing on behalf of the petitioners would submit that the wording of Item No.5(h)(A) of the Schedule I to the Act is vague and general. That leaves the matter to the subjective satisfaction of the Executive. Mr. Dwarkadas submits that the impugned amendment is ex facie unconstitutional and is ultra vires Articles 14 and 19(1)(a) of the Constitution of India. Apart from the fact that the State lacks competence to enact the law, Mr. Dwarkadas submits that the State is levying stamp duty on the transaction itself. Mr. Dwarkadas invites our attention to List-I � Union List of Seventh Schedule to the Constitution of India and Entry 92 therein. He then places for consideration Entry No.55 in List II. He would submit that the entire field is occupied by the Union List insofar as taxes on advertisement. If the subject levy is a tax, then, Entry No.92 excludes the State''s power to impose stamp duty on advertisement or instruments of advertisements relating to advertisements in mass media. The State''s power to tax other than that mentioned in Entry No.55 List II is taken away by virtue of the wide power of the Union. In that regard, our attention is invited to Article 366(28) of the Constitution of India. Then, Mr. Dwarkadas relies upon the statement of objects and reasons to the impugned amendment and submits that his first proposition gets support for there is no definition of the term or word mass media. It is left entirely to the understanding of the Executive. A uncanalised, unbridled and unchecked power is conferred by which there would be a pick and choose policy adopted. Mr. Dwarkadas submits that the courts of law and particularly the constitutional courts have cherished and zealously safeguarded the freedom of speech and expression which includes in its purview the freedom of press. Free press is taken to be the fourth pillar of democracy. A vibrant democracy for its survival depends upon free speech and expression. Mr. Dwarkadas submits that commercial advertisements means speech and that is encompassed in Article 19(1)(a). Now, in the garb of levying stamp duty on the Instruments of advertisement in mass media, the Executive will control the press and mass media. It would seek to proceed against those in the mass media who do not tow the line of the party or Government in power. A critic of the State and the Government would now be subjected to strict and rigorous treatment. Thus, it is entirely at the sweet will of the Executive and that will govern the interpretation of the amendment. Mr. Dwarkadas submits that it is too well settled a principle to require reiteration that there is no implied power to tax. A taxing power must be explicit, unambiguous and clear. It must be expressed in plain words. Nothing should be left to the Executive''s imagination and no vagueness is permitted when it comes to a taxing power. Therefore, general and vague words and undefined expressions incorporated in taxing statutes and particularly machinery provisions would mean delegation of the power to tax in widest and uncontrolled terms. Such delegation would be then excessive.

After the matter was fully heard and reserved for judgment, on 4th October, 2016, the petitioners tendered written submissions. In the written submissions, after setting out the brief background, the arguments are divided on two broad aspects. On legislative competence, apart from elaborating the oral arguments, the written submissions/propositions highlight that the impugned Article imposes a tax on advertisements in mass media made for promotion of any product or programme or event with an intention to make profits or business out of it. After submitting that the mass media would mean radio or television and advertisements thereon and thus understood, the levy is outside the purview of Entry 55 of List-II of the Seventh Schedule to the Constitution of India. After relying upon the statements in the affidavit-in-reply filed by the State on 11th November, 2008, and thereafter, the interim order, what is submitted is that the respondents sought to withdraw the stand and the concession therein without any justification.

After setting out the constitutional regime of taxation and particularly the wording of Entry 92 of List I, Entry 55 of List II, Entry 44 of List III, Entry 63 of List II, it is urged that these entries cannot be used to override the Central Government''s power to tax and the fields reserved under Entry 92 List I are specifically excluded from the legislative powers of the State. The taxing statutes have to be interpreted strictly and if more than one interpretation is possible, that interpretation which favours the assessee/subject should be placed on the provision.

Then, it is submitted that the judgment of the Hon''ble Supreme Court in the case of M/s. Hindustan Lever v. State of Maharashtra (2004) 9 SCC 438 would support the above contentions. Thus, upto paragraph 16 of the written submissions, the first aspect of legislative competence is covered.

Then, the attack insofar as freedom of speech is concerned, is the topic in the second part and commencing from paragraph 17. It is urged that petitioner No.1 is a National organization/association. Similarly, petitioner No.4-society represents ninety per cent of the newspapers and magazines sold in India. Petitioner No.8 controls a large number of broadcasting channels and petitioner No.10 is a large player insofar as broadcasting. The levy of stamp duty would impinge on the right of pre-dissemination of information and commercial speech.

After urging that commercial speech is included in the right to freedom of speech and expression what has been submitted is that tests have been evolved over a passage of time. One of the test is of a direct effect on fundamental right although the subject matter may be different. If the direct and inevitable consequence on the fundamental right is spelt out, then, the levy cannot be justified and must be struck down.

The other test to be applied is of distinct and noticeable burdensome-ness in the case of a tax on newsprint and thereafter what is submitted is that the petitioners have only to demonstrate a distinct burden and need not prove/provide empirical data to establish the unreasonableness of the tax.

Thus the emphasis is that the petitioners have discharged the burden placed on them by law. If the initial burden is on the petitioners to demonstrate and prove that the law is unconstitutional, then, that burden is discharged by them by providing data and particulars. That would highlight as to how there is a direct effect on the fundamental right guaranteed by Article 19(1)(a). Once the stamp duty is a tax and that is imposed on instruments relating to advertisements in mass media, then, any advertisements placed in the newspapers, radio or television would invite increased expenses. If the advertisement is inserted with a view to augment the business or increase the profits, then, it is apparent that the advertising cost would go into the determination of the price; say for example of a newspaper, if its price goes up, then that impacts the circulation directly. This is how there would be a direct effect. It is submitted that the test is one of distinct and noticeable burdensome-ness in the case of tax on newsprint. Therefore, the test is not as much of direct and inevitable consequence, but one of distinct and noticeable burdensome-ness. The petitioners have, according to Mr. Dwarkadas, demonstrated this distinct burden. That need not be proved or backed by empirical data.

It is then urged that a valid restriction on the freedom guaranteed by Article 19(1)(g) of the Constitution cannot be a defence to a violation of freedom of speech guaranteed by Article 19(1)(a). In other words, it is not a valid defence to the violation of the right to free speech and expression that a reasonable restriction is being placed on the right to free trade guaranteed by another Article 19(1)(g). To be precise and clear, the reasonable restrictions qua each freedom having been enshrined distinctly and separately it is no ground or reason to support the violation of the right of freedom guaranteed by Article 19(1)(a) by relying upon a distinct restriction and termed as reasonable in the context of the right to free trade, or the right to freedom of trade, business or profession. If that is permitted, it would mean a common thread runs through the restrictions that can be imposed on distinct freedoms of diverse nature. The Constitution makers did not carve out the restrictions in such general terms, but specified the restrictions as applicable to each right to freedom and spelt them out distinctly.

Therefore, it is urged that the principles contained in judgments of free speech of expression are applicable equally to radio and television broadcast. If the tests evolved by all these judgments are applied, then, it will have to be held that the impugned provision violates the fundamental right guaranteed by Article 19(1)(a) and must be, therefore, struck down as ultra vires Part III of the Constitution of India. Mr. Dwarkadas has placed reliance upon the following judgments:

(1) Hindustan Lever & Anr. v. State of Maharashtra & Anr. (2004) 9 SCC 438.

(2) State Bank of India v. State of Maharashtra, 2016 (3) ABR 386.

(3) Sakal Papers (P) Ltd. & Ors. v. Union of India (1962) 3 SCR 842 : AIR 1962 SC 305

(4) Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors. (1985) 1 SCC 641

(5) Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. & Ors. (1995) 5 SCC 139

(6) Secretary, Ministry of Information & Broadcasting, Government of India & Ors. v. Cricket Association of Bengal & Ors.(1995) 2 SCC 161.

(7) Hindustan Times & Ors. v. State of U.P. & Anr. (2003) 1 SCC 591.

(8) Govind Saran Ganga Saran v. Commissioner of Sales Tax & Ors. 1985 (Supp.) SCC 205.

(9) Devi Dass Gopal Krishnan Etc. v. State of Punjab & Ors. & Other Connected Appeals (1967) 3 SCR 557.

(10) Hansraj & Sons v. State of Jammu & Kashmir & Ors. (2002) 6 SCC 227.

(11) Smt. Maneka Gandhi v. Union of India AIR 1978 SC 597.

Mr. Aney, learned senior counsel appearing on behalf of the respondents submitted that a law made by a competent legislature can be struck down by courts on two grounds, namely, lack of legislative competence and violation of the fundamental rights guaranteed in Part III of the Constitution of India or any other constitutional provision.

As far as the legislative competence is concerned, Mr. Aney emphasizes that the duty is and remains on the instrument and not on the underlying transaction. Plainly and properly understood, this is a stamp duty on an instrument relating to advertisements inserted in mass media with a clear intent as set out in the Article itself. Mr. Aney would submit that assuming though not admitting that there is an overlap between the two entries, namely, Entry 92 of List I and Entry 55 of List II read with Entry 44 of List III, such an overlap will not render the impugned levy unconstitutional as such overlap is in the nature of incidental entrenchment under the doctrine of Pith and Substance.

Mr. Aney would submit that whenever a piece of legislation is said to be beyond the legislative competence of a State Legislature, whether the legislation falls within any of the entries in List II must be examined by applying the rule of pith and substance. If it does, the attack on the ground of legislative competence must fail. In the present case, the impugned Article as introduced by the Amendment Act falls squarely within the scope of the aforementioned Entry 63 of List II.

Mr. Aney submits that the impugned Article as introduced by the Amendment. At relates to Entry 63 read with Entry 44, List III. It is settled law that if a State legislation is relatable to an entry in List III, applying the rule of pith and substance, then also the legislation would be valid, subject to a Parliamentary enactment occupying the field. In the present case, there is no Parliament enactment occupying the field which is in any manner inconsistent with the impugned Article. Hence, there is no repugnancy.

Mr. Aney would further submit that a bare reading of the impugned Article 5(h)(A) of the Maharashtra Stamp Act in its entirety will make it abundantly clear that it relates to an Agreement or its records or Memorandum of an agreement, for any advertisement or mass media made for promotion of any product, or programme or event with an intention to make profits or business out of it. Thus, the stamp duty is levied and collected on the instruments in the nature of contractual agreements relating to advertisements in news papers and mass media, and not the advertisement itself.

Mr. Aney then submits that imposition of stamp duty or power to impose stamp duty is available both to the Centre and the State by virtue of Entry 44, List III. However, the rate at which stamp duty is to be imposed on the documents other than those specified in List I is made available exclusively under Entry 63, List II. Applying the doctrine of pith and substance, the impugned provisions falls under Entry 63, List II since it relates to the rate of stamp duty. The right of the State to impose stamp duty falls under Entry 44, List III. If the rate as determined is squarely covered by Entry 63, List II then, the doctrine of pith and substance can distinguish the act of imposition by relegating it to Entry 44, List III.

Mr. Aney further submitted that the Parliament has exclusive power to make laws with respect to any of the matters enumerated in the List I in the Seventh Schedule of the Constitution. Similarly, the State Legislature has the exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the List II in the Seventh Schedule. Both the Parliament as well as a Legislature of a State have the power to make laws with respect to any of the matters enumerated in the List III of the Seventh Schedule.

Mr. Aney would submit that Entry 91 of List I grants the Parliament the exclusive power to make any law relating to "Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts." Further, Entry 63 of List II grants the Legislature of a State the exclusive power to make any law relating to "Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty."

Mr. Aney submits that the petitioner has contended absence of legislative competence by referring to Entry 92, List I. The respondent No.1 submits that it draws its source of power from List II, Entry 63. List III, Entry 44 empowers the State to impose stamp duty. Entry 63 List II read with Entry 44 List III, gives power to the State to fix the rate of stamp duty. As the Central Government has not fixed any rate of stamp duty for agreements concerning advertisements in newspapers, radio or television, this field is not covered by Central legislature and is thus open for the State to legislate under the powers of List II Entry 63 and List III Entry 44. In any event, any incidental entrenchment would not cause illegality.

Mr. Aney submitted that the embargo of Entry Nos.54 and 55 in List II relates to tax on sale/purchase of newspapers and on advertisements published in newspaper, radio or television. In the instant matter, Entry 63 comes into the picture which gives authority to the State to fix stamp duty in respect of such documents which are not covered by List I, Entry 91. Thus, an agreement to advertise would attract stamp duty as provided under the Maharashtra Stamp Act, section 1, Article 5(h)(A)(i) and (ii).

Mr. Aney further submitted that the duty levied on the instrument concerning the advertisements published in newspapers etc., therefore, is not traceable to Entry 92, List I, but is covered by Entry 63, List II with entry 44 List III. The said levy is thus within the legislative competence of the State legislature. The said position has been recently approved by the Supreme Court as well as the Full Bench of this Court in the case of The Chief Controlling Revenue Authority, Maharashtra State, Pune v. Reliance Industries Limited & Anr. to which one of us (S.C. Dharmadhikari, J) was a party, in Civil Reference No.1 of 2007 in Writ Petition No.1293 of 2006 in Reference Application No.8 of 2005 decided on 31st March, 2016.

Mr. Aney then submitted that assuming though not admitting that there is an overlap between the two entries, namely, Entry 92 of List I and Entry 55 of List II read with Entry 44 of List III, such an overlap will not render the impugned Article unconstitutional as such overlap is in the nature of incidental entrenchment under the doctrine of Pith and Substance.

With reference to the contention of the petitioners that the impugned Article as introduced by the Amending Act is beyond the legislative competence of the respondent No.1 State in light of Entry 92 of the List I and Entry 55 of List II, Mr. Aney submitted that the several entries in the three lists of the Seventh Schedule are mere legislative heads and it is quite likely that very often they overlap. Wherever such a situation arises, the issue must be solved by applying the rule of pith and substance.

Mr. Aney would submit that in the present case, the Impugned Article as introduced by the Amendment Act falls squarely within the scope of the aforementioned Entry 63 of List II.

Mr. Aney submitted that furthermore, the impugned Article as introduced by the Amendment Act relates to Entry 63 List II read with Entry 44, List III. He submitted that it is settled law that if a State legislation is relatable to an entry in List III, applying the rule of pith and substance, then also the legislation would be valid, subject to a Parliamentary enactment inconsistent with it. In the present case, there is no Parliamentary enactment occupying the field which is in any manner inconsistent with the impugned Article. Hence, there is no repugnancy.

Mr. Aney then submitted that a bare reading of the impugned Article 5(h)(A) of the Maharashtra Stamp Act in its entirety will make it abundantly clear that it relates to an agreement for it records or memorandum of an agreement for any advertisement or mass media made for promotion of any product, or programme or even with an intention to make profits or business out of it. Thus, the stamp duty is levied and collected on the instruments in the nature of contractual agreements relating to advertisements in newspapers and mass media, and not the advertisement itself.

As far as the second part of the submissions are concerned, Mr. Aney submitted that the broad contentions on the point of violation of the mandate of Articles 14 and 19(1)(a) of the Constitution of India can be met by urging that an enactment can be said to be violative of Article 14 and can be struck down only if it is found to be violative of the equality clause. That Article contemplates equality before law and equal protection of laws. Mr. Aney submits that absence of definition or exhaustive guidelines for exercise of discretion would not render the provision unconstitutional when the guidelines can be gathered from the setting of the statute. The guidelines need not be found in the impugned provision. The same may be collected from the purpose for which the Act is enacted and understanding and appreciating it. If a legislation or statute is enacted to achieve some public purpose, then, the policy of the law and the object sought to be achieved can furnish reliable guidelines for the exercise of the power.

Therefore, Mr. Aney submits that there is no substance in the contention that the impugned Article confers a wide, unbridled and uncanalised discretion on the Executive agency. There is nothing like an absolute power or absolute discretion. The power as also its exercise is well defined and the parameters are laid down. The guiding principles are to be found in the judgments of the Hon''ble Supreme Court of India and of this Court and if any exercise of discretion is either arbitrary or capricious, unreasonable, unfair, unjust then the same can always be challenged in appropriate proceedings. The guarantee of judicial review and by an independent judiciary is part of the basic structure of the Constitution. Therefore, there need not be any apprehension. It is submitted that there is no vagueness as is now contended. He submits that general words are employed to convey the policy and intention to achieve the object and, therefore, they may be understood in context. Merely because one particular word or phrase has not been defined is no ground to declare the provisions of the Act as unconstitutional. Mr. Aney emphasized that mass media is not a term of art. The common parlance test or dictionary meaning is enough to understand as to what is covered by this word or expression. Its ordinary meaning itself is enough to rebut the challenge of vagueness or uncertainty. Further, this term is not used in isolation but conjointly as "advertisement on mass media". Therefore, any agreement that results in the appearance of any advertisement on mass media would be sufficient to attract levy of stamp duty Mr. Aney would submit that similarly the words "with an intention to make profits or business" are self-explanatory. This phrase has to be understood in its general sense and so long as an instrument evidences a transaction relating to advertisement of any product, programme or event and so long as the intention is to make profit or business, the liability to stamp duty is attracted. Mr. Aney submits that this is as simple as it can be and all the petitioners need not apprehend that the legislature employs general words with a view to create uncertainty. Mr. Aney submits that the burden to establish and prove that a statute is unconstitutional is on that person who alleges it to be so. For that clear averments and allegations in the pleadings are necessary. Without any material of the provision being applied to cases not covered by it or the discretion being used arbitrarily, no challenge can be mounted in abstract or on purely academic grounds.

Therefore, once the party to an instrument has the opportunity to dispute that the instrument relates to any advertisement on mass media made for promotion of any product or programme or event or with all this but without an intention to make profits or business, then, it is open to such party to have a grievance in that behalf redressed by resorting to the mechanism of adjudication provided under the Act and if it is still dissatisfied to question that adjudication in remedies provided by the Act. He can always take recourse to such remedies and over and above all this it would be open for the aggrieved persons to approach a Constitutional Court.

It is, therefore, clear that the statute or the provision cannot be declared ultra vires if that is otherwise legal and valid. A possible misuse or abuse of a power is no ground to strike down the provision itself. For this reason, he would submit that the challenge on the basis of Article 14 must fail.

Then he would submit that there is no substance in the contention that the impugned enactment is intended to bring about a direct interference with the right to freedom of speech and expression guaranteed under Article 19(1)(a). Mr. Aney would submit that admittedly Article 5(h)(A) as it stood prior to the amendment of 2005 provided for stamp duty on all agreements or its record or memorandum of agreements and if not otherwise provided for. However, by the 2005 amendment, clause 5(h) has been replaced by the present provisions, namely, 5(h)(a)(i) to (v). In 2009, by a further amendment the percentage of stamp duty leviable has been revived which admittedly is not under challenge in the present petition. Thus, the stamp duty was leviable on such agreements of advertisements in newspapers or mass media even before the present enactment was introduced. All that the present amendment does is to make something explicit which was implicit earlier. Thus, the present enactment does not seek to tax newspaper advertisements directly. The tax is levied upon agreements or its record or memorandum of agreements concerning advertisements in newspaper or mass media. This is not a direct violation as is alleged. Mr. Aney submits that Article 19(1)(a) comprehends freedom of press but press is not immune from taxes or general laws. Freedom of press is not explicitly guaranteed as a fundamental right but it is implicit in the citizen''s freedom of speech and expression. The newspaper industry enjoys this freedom and the freedom to engage in any profession, occupation, trade, industry or business guaranteed under Article 19(1)(g). While there can be no tax on the right to exercise freedom of press, tax is leviable on profession, occupation, trade, business and industry. Hence, tax is leviable on newspaper industry. It is only when such tax transgresses into the field of freedom of expression and seeks to stifle it that it is unconstitutional. The legislature, if acting within reasonable limitation, is presumed not to impede this freedom. The petitioners contention that both the freedoms, as enunciated above, are in jeopardy is not correct. In the absence of verifiable empirical data which would conclusively demonstrate that such levy and collection of stamp duty will have an inevitable effect of destroying the right to carry on business, including business of advertising in newspapers and mass media and such a destructive imposition would directly impact the function and duty of the newspapers or mass media, to carry ahead the fundamental right of freedom of speech and expression, the petitioners submissions in that regard would have to be considered too remote or tenacious to be accepted.

For the above reasons, he would submit that the Writ Petition be dismissed.

Mr. Aney relied upon the following judgments and decisions in support of his contentions :

(1) (1997) 1 SCC 319 A. Suresh & Ors. v. State of Tamil Nadu & Anr.

(2) 1957 SCR 399 : AIR 1957 SC 297 A.S. Krishna & Ors. v. State of Madras.

(3) AIR 1959 SC 544 State of Rajasthan v. G. Chawla & Anr.

(4) (2015) 11 SCC 734, GVK Industries Ltd. v. Income Tax Officer.

(5) (1980) 2 SCC 684 Bachan Singh v. State of Punjab.

For a proper appreciation of these contentions, it would be necessary to refer to the Maharashtra Stamp Act in some details. This Act is enacted to consolidate and amend the law relating to stamps and stamp duties in the State of Maharashtra. Section 2 contains definitions. We are concerned in this case with the definition of the words "duly stamped" as appearing in section 2(h), "executed" and "execution" appearing in section 2(i) and "instrument" appearing in section 2(l). These definitions read as under :

"2. Definitions

... ... ... ...

(h) "duly stamped" as applied to an instrument means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the State;

(i) "executed" and "execution" used with reference to instruments mean "signed" and "signature";

Explanation.- The terms "signed"and "signature" also include attribution of electronic record as per section 11 of the Information Technology Act, 2000.

... ... ...

(l) "instrument includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded, but does not include a bill of exchange, cheque, promissory note, bill of lading, letter of credit, policy of insurance, transfer of share, debenture, proxy and receipt;

Explanation.- The term "document" also includes any electronic record as defined in clause (t) of subsection (1) of section 2 of the Information Technology Act, 2000."

A perusal of these definitions would reveal as to how duly stamped is an expression in relation to an instrument. It means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with the law for the time being in force in the State. The term "executed" and "execution" used with reference to instruments mean "signed" and "signature". The word "instrument" is defined in an inclusive manner. It includes every document by which any right or liability is, or purports to be created, transferred, etc., but does not include the documents falling within the exception carved out by the definition. By the Explanation, the term "document" is understood to include any electronic record.

The stamp duty thus is on an instrument and not on the transaction. After noticing section 2, if one goes ahead and peruses section 3 of the Act which falls in Chapter II Part (A) "Of The Liability of Instruments to Duty", then, it is evident that subject to the provisions of the Stamp Act and the exemptions contained in Schedule I, the instruments stated and enumerated therein shall be chargeable with duty of the amount indicated in Schedule I as the proper duty therefor respectively. The second proviso was substituted by the Maharashtra Tax Laws (Levy and Amendment) Act, 1998 (Act No.21 of 1998). It is clear that no duty shall be chargeable in respect of any instrument executed by or on behalf of or in favour of the Government. But for this exemption, the Government would be liable to pay duty chargeable in respect of such instrument or where the Government has undertaken to bear the expenses towards the payment of the duty. We are not concerned with the second proviso to the extent it deals with any ship or vessel. Following this section and section 4 where legislature provides for several instruments used in single transaction of development agreement sale, lease, mortgage or settlement and the duty chargeable thereon. By section 5 it is stated that any instrument comprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duty with which such separate instrument each comprising or relating to one or such matters would be chargeable under the Stamp Act. Then, a case of instruments coming within several descriptions in Schedule I is dealt with by section 6. The question of payment of higher duty in respect of certain instruments is covered by section 7. By section 8 bonds or securities other than debentures issued on loans under Act IX of 1914 and other law (Local Authorities Loans Act, 1914) has been dealt with. Then, the power to reduce, limit or compound duties is conferred on the State Government vide section 9. By section 10 falling in Para (B), the matters of stamp and the mode of using them is dealt with. In this part fall sections 10A to 16. Part (C) of this Chapter deals with Time of Stamping Instruments and therein appear sections 17 to 19. Part (D) deals with Valuations for Duty and therein appear sections 17 to 19.

Finally, by Part (E) the important aspect of by whom the duty is payable is dealt with.

Section 30 reads thus :

"30. Duties by whom payable.

In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne -

(a) in the case of any instrument described in any of the following articles of Schedule 1, namely:-

No.2 (Administrative Bond).

No.6 (Agreement relating to Deposit of Title-deeds, Pawn or Pledge),

No.13 (Bond),

No.14 (Bottomry Bond)

No. 28 (Customs Bond),

No. 33 (Further Charge),

No. 35 (Indemnity Bond),

No. 40 (Mortgage Deed),

No. 52 (Release),

No. 53 (Respondentia Bond),

No. 54 (Security Bond or Mortgage Deed),

No. 55 (Settlement)

No. 549(a) Transfer of debentures, being marketable securities whether the debenture is liable to duty or not, except debentures provided for by section 8 of the Indian Stamp Act, 1899)

No. 59(b) Transfer of any interest secured by a bond or mortgage deed or policy of insurance, by the person drawing or making such instrument,

(b) In the case of a conveyance including a conveyance of mortgaged property by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee;

(c) in the case of a counter part of a lease by the lessor;

(d) in the case of an instrument of exchange by the parties in equal shares;

(e) in the case of a certificate of sale by the purchaser of the property to which such certificate relates;

(f) in the case of an instrument of partition by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue Authority or Civil Court or Arbitrator, in such proportion, as such Authority, Court or arbitrator directs;

(f-a) in case of instruments of works contracts as provided in Article 63 of SCHEDULE I, by the person receiving the contract;

(g) in any other case, by the person executing the instrument."

A perusal of this would indicate that if one looks at Article 5(h)(A), then in relation to that instrument in the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne by the person executing the instrument. Therefore, it is not that an agreement contrary to this stipulation cannot be arrived at. The expenses of providing the proper stamp and by whom it shall be borne can be governed by such an agreement. That would be covered by clause (g) of section 30. Therefore, it is not as if that all the petitioners would necessarily have to bear these expenses. In fact, the petition is completely silent and does not set out any particulars or details about how the burden would fall necessarily on the advertisers or the newspapers or the television channels.

During the course of arguments it was unfolded that there could be a situation where the manufacturer or the person desiring insertion of an advertisement in mass media would approach the advertising agency. He would draw up an agreement so that the advertiser takes up the obligation and inserts an advertisement on his behalf in mass media. The second part could be of an agreement between advertiser and the concerned newspaper or mass media. Therefore, there is substance in the contention of Mr. Aney that it is not necessary that there would be a single agreement or an agreement between the manufacturer of the product or the organizers of any programme or event and the mass media directly. There could be a bifurcation and if an instrument relating to any advertisement on mass media made for promotion of any product or programme or event with an intention to make profits or business out of it can be between the manufacturer or organizers and the advertising agency. Thereafter advertisers or advertising agencies would approach the mass media and have a distinct agreement or arrangement as between them. Therefore, the organizer or manufacturer may not have direct privity with the mass media.

The other chapters, namely, Chapters III to VIII would indicate how there are provisions for adjudication as to stamps, Instruments not duly stamped, Allowance for stamps in certain cases. These chapters deal with the contingencies and situations elaborately set out in sections 31 to 52B. The adjudication contemplated by Chapter III is subject to the power of Reference Revision and Appeal conferred by Chapter VI. After all this appear the Chapters enumerating offences and procedures so also supplemental provision. Then, there is Schedule I enlisting the Instruments.

Article 5(h)(A) appearing in Schedule I reads thus :

Description of Instrument

Proper Stamp Duty

(h) (A) If relating to, -

(i) any advertisement on mass media, made for promotion of any product; or programme or event with an intention to make profits or business out it,-

(a) if the amount agreed does not exceed rupees ten lakhs;

0.25 per cent of the amount agreed in the contract subject to minimum of rupees 100.

(b) in any other case

0.5 per cent of the amount agreed in the contract.

(ii) conferring exclusive right of telecasting, broadcasting or exhibition of an event or a film,-

(a) if the amount agreed does not exceed rupees ten lakhs;

0.25 per cent of the amount agreed in the contract subject to minimum of rupees 100

(b) in any other case

0.5 percent of the amount agreed in the contract.

(iii) specific performance by any person or a group of persons where the value of contract exceed rupees 1,00,000,-

(a) if the amount agreed does not exceeds rupees ten lakhs;

0.25 per cent of the amount agreed in the contract subject to minimum of rupees 100

(b) in any other case

0.5 per cent of the amount agreed in the contract.

(iv) creation of any obligation, right or interest and having monetary value, but not covered under any other article, -

(a) if the amount agreed does not exceed rupees ten lakhs;

0.1 per cent of the amount agreed in the contract subject to minimum of rupees 100

(b) in any other case

0.2 per cent of the amount agreed in the contract.

(v) assignment of copyright under the Copyright Act,1957, -

(a) if the amount agreed does not exceed rupees ten lakhs;

0.25 per cent of the amount agreed in the contract subject to minimum of rupees 100

(b) in any other case

0.5 per cent of the amount agreed in the contract.

(vi) project under Built, Operate and Transfer (BOT) system, whether with or without toll or free collection rights,-

(a) if the amount agreed does not exceed rupees Five lakhs;

0.1 per cent of the amount agreed in the contract subject to minimum of rupees 100

(b) in any other case

0.2 per cent of the amount agreed in the contract.

(B) if not otherwise provided for,

Explanation.- No duty shall be chargeable on agreements or its record covered under sub-clauses (b) an (c) of this article, if proper duty is paid under article 51A.

One hundred rupees

Exemptions

Agreement or its records or Memorandum of Agreement-

(a) for or relating to the purchase of sale of goods or merchandise exclusively not being an agreement or memorandum of agreement chargeable under entry (d), entry (e), entry (f) or entry (g) of this Article or a note of memorandum chargeable under Article 43;

(b) 3[* * *]

(c) 3[ * * *]

A perusal thereof would indicate as to how it deals with an instrument relating to any advertisement on mass media, but that by itself does not attract the duty. The instrument ought to relate to any advertisement on mass media made for promotion of any product or programme or event with an intention to make profits or business out of it.

We are concerned only with this category but the Article goes further and covers an instrument relating to conferring exclusive rights of telecasting, broadcasting or exhibition of an event or film as well.

We are concerned with advertisement on mass media. That advertisement by itself and without the further ingredients and embodied in an instrument does not attract stamp duty. It is the instrument relating to any advertisement or mass media but with further ingredients being satisfied which would attract the stamp duty. We cannot, therefore, proceed on the assumption that by mere insertion of this Article the right to freedom to free speech and expression guaranteed by the Constitution is in jeopardy.

We will come to this aspect a little later.

Firstly, we must clear the ground about the competence of the State legislature to enact this provision.

In that regard we must refer to the Seventh Schedule to the Constitution of India referable to Article 246 which contains the Union List, the State List and the Concurrent List.

Insofar as the Union List is concerned (List-I), reliance is placed on Entries 91 and 92. These Entries read as under :

"91. Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.

Taxes on sale or purchase of newspapers and on advertisements published therein."

Therefore, the Parliament can make a legislation prescribing rates of stamp duty in respect of bills of exchange, cheques, promissory notes etc. and can also impose a tax on the sale of purchase of newspapers and on advertisements published therein. As far as the State List is concerned, heavy reliance is placed by Mr. Aney on Entry 63 appearing therein which provides for rates of stamp in respect of documents other than those specified in provisions of List I with regard to rate of stamp duty. It may be that List III-Concurrent List is also relied upon, but a perusal of Entry 44 in List III leaves us in no manner of doubt that stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duties would enable the State legislature in the present case to enact the Maharashtra Stamp Act, 1958.

Pertinently, Mr. Dwarkadas does not dispute the competence of the State legislature in enacting this Maharashtra Stamp Act, 1958, but urges that the impugned Article is beyond its purview.

We are unable to accept this contention for more than one reason. Mr. Dwarkadas has urged that we must refer to Entry 92 in List I of the Seventh Schedule. That permits only the Parliament to levy tax on sale or purchase of newspapers and advertisements published therein and Entry 55 of List II which permits the State to levy taxes on advertisements other than advertisements published in the newspapers and advertisements broadcast by radio or television. We do not think that the present Article 5(h)(A) appearing in the Maharashtra Stamp Act, 1958, enables the State legislature to tax or levy stamp duty on the advertisement or the subject matter of the agreement. Properly and correctly construed so also read, the impugned Article permits levy of stamp duty on an instrument if that relates to any advertisement on mass media made for promotion of any product or programme or event with an intention to make profits or business out of it. Thus, it is an agreement and relating to above which is the subject matter of stamp duty. That is an instrument attracting the duty.

Therefore, it would not be proper to assume that the impugned Article imposes a tax on advertisement on mass media as urged by Mr. Dwarkadas. We are of the clear opinion and agree with Mr. Aney that in the present case, the relevant Article would be Entry 63 in the State List. If that is the Article governing the levy, then, there is no substance in the contentions of Mr. Dwarkadas that the State lacks legislative competence.

The legal principles and emerging from the Hon''ble Supreme Court''s earlier decisions are to be found in the case of The Bar Council of Uttar Pradesh v. State of Uttar Pradesh & Anr. reported in AIR 1973 SC 231. The Hon''ble Supreme Court held as under :

"11. Now Entries 77 and 78 in List I in the Seventh Schedule to the Constitution are as follows :

"77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; person entitled to practise before the Supreme Court.

Constitution and organisation (including vacations) of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before High Courts".

Entry 91 relates to rates of stamp duty in respect of certain instruments which do not cover an instrument or a document with which we are concerned, namely, certificate of enrolment issued under Section 22 of the Act. Entry 96 in the same list relates to fees in respect of any of the matters in the List but not including the fee ''taken in any court. Entry 63 in List II relates to rates of stamp duty in respect of documents other than those specified in List I i.e. Entry 91. In the same List Entry 66 relates to fees in respect of any of the matters in that List but not including fee taken in any court. The following Entries in List III may be reproduced :

"26. Legal, medical and other professions".

"44. Stamp duties other than duties or fees collected by means of judicial stamp, but not including rates of stamp duty".

There is no dispute that the Act was enacted under Entries 77 and 78 in List I. It is equally clear that the words "persons entitled to practise" would include determining or prescribing the qualifications and conditions that a person should possess and satisfy before becoming entitled to practise as an advocate before the Supreme Court or the High Courts. So far as persons entitled to practise before these courts are concerned "the power to legislate in regard to them is carved out from the general power relating to the provision in Entry 26 in List III and is made the exclusive field for Parliament". In other words the power to legislate in regard to persons entitled to practise before the Supreme Court and the High Courts is altogether excluded from Entry 26 in List II. (See O.N. Mohindroo v. The Bar Council of Delhi (1968) 2 SCR 709 = (AIR 1968 SC 888). From the entries the following scheme with regard to persons entitled to practise will appear to emerge; (1) The Parliament has the exclusive power under Entry 77 and Entry 78 in List I to prescribe, inter alia, the qualifications and conditions on the fulfilment of which persons would be entitled to practise before the Supreme Court or the High Courts. Any fee which may be payable by such persons before they can claim to be entitled to practise would fall under Entry 96 of that List; (2) Entry 44 of List III enables legislation with regard to its levy but the rates of the stamp duty can be prescribed by the Parliament only with regard to instruments falling within Entry 96 of List I and by the State Legislature under Entry 63 of List II.

The main question on which the controversy has centered is whether the levy of stamp duty on the certificate of enrolment of an advocate is a purely taxation measure or whether it is a part of the conditions prescribed by Section 24 of the Act which an advocate must satisfy before he becomes entitled to practise. If the requirement of the payment of such a duty is a condition precedent to the conferment on a person of the privilege of audience and representing suitors before the Supreme Court and the High Courts any legislation relating to it would be within the competence of the Parliament. If, however, it is purely a taxation measure then it would fall within Entry 44 of the Concurrent List in which event both the Parliament and the State Legislature would be competent to enact legislation for the levy of the duty although it is only under Entry 63 of List II that rates can be prescribed by the State Legislature. In other words, the charging provisions can be enacted by both the Parliament and the State Legislatures subject to the provisions of Article 254 of the Constitution, it is well settled that the scheme of the Entries in the various Lists is that taxation is not intended to be comprised in the main subject in which "it might on an extended construction be regarded as included but is treated as a distinct matter for the purpose of legislative competence". Even under the residuary power a legislation conferred by Article 248 the Parliament can only impose that tax which is not mentioned in either List III or List II.

It has been pointed out on behalf of the respondents that the Indian Bar Councils Act 1926 was passed under the provisions of the Government of India Act 1915. Under that Act the States had no power to levy tax in the nature of a stamp duty. It was possibly for that reason that a provision was made in Section 8(2) by the Central Legislature expressly saying that the persons who were to be enrolled as advocates shall have to pay stamp duty, if any, chargeable under the Indian Stamp Act 1899 and fee payable to the Bar Council. In the Government of India Act 1935 there was no entry equivalent to Entries 77 and 78 of the Constitution in List I. Entry 57 in List I of the Act of 1935 corresponded to Entry 91 in List I of the Constitution. Entry 51 in List II of that Act corresponded to Entry 63 in List II of the Constitution. Entry 13 in the Concurrent List in the Schedule to the 1935 Act corresponded to Entry 44 in List III of the Constitution. Entry 16 in the Concurrent List in the Schedule to the Act ''was "legal, medical and other professions". It was similar to Entry 26 in List III of the Constitution. The stamp duty was payable to the Bar Council in Uttar Pradesh as provided by the Bar Council Act 1926 under Entry 30 of U.P. Act III of 1936. After the Constitution came into force the U.P. Stamp Amendment Act 1952 was enacted. The charging section was Section 3 under which among others every instrument mentioned in Schedule I (A) or 1 (B) executed in Uttar Pradesh was chargeable with the duty of the amount indicated in those schedules. When the Act was enacted its provisions fell principally under Entries 77 and 78 in List I of the Seventh Schedule. These Entries, it has been strenously argued on behalf of the respondents, do not include the taxing power, which was contained in the different Entries which have already been indicated. The stamp duty pertains to the domain of taxation and is covered by Entry 63 in List II read with Entry 44 in List III."

In fact, Mr. Dwarkadas was very fair in bringing to our notice the judgment of the Hon''ble Supreme Court in the case of Hindustan Lever and Anr. v. State of Maharashtra & Anr., (AIR 2004 SC 326) In dealing with a precise controversy and about the lack of legislative competence, the Hon''ble Supreme Court concluded as under :

"32. In view of the aforesaid discussion, we hold that the order passed by the Court under Section 394 of the Companies Act is based upon the compromise between two or more companies. Function of the Court while sanctioning the compromise or arrangement is limited to oversee that the compromise or arrangement arrived at is lawful and that the affairs of the company were not conducted in a manner prejudicial to the interest of its members or to public interest that is to say it should not be unfair or contrary to public policy or unconscionable. Once these things are satisfied the scheme has to be sanctioned as per the compromise arrived at between the parties. It is an instrument which transfers the properties and would fall within the definition of Section 2(1) of the Bombay Stamp Act which includes every document by which any right or liability is transferred. The State Legislature would have the jurisdiction to levy stamp duty under Entry 44, List III of the seventh Schedule of the Constitution of India and prescribe rates of stamp duty under Entry 63, List II.

.... .... ....

In Welfare Assn., A.R.P. v. Ranjit P. Gohil, (AIR 2003 SC 1266) it was held that there is a presumption that the Legislature does not exceed its jurisdiction. A statute should be construed so as to make it effective and operative on the principle expressed in the maxim "ut res megis valeat quam pereat". (It is better to validate a thing than to invalidate it). The burden of establishing that the Act is within the competence of the Legislature, or that it has transgressed other constitutional mandates is always on the person who challenges its vires. That the fountain source of legislative power exercised by the Parliament or the State Legislature is not Schedule Seven; the fountain source is Article 246 and other provisions of the Constitution. The function of the three Lists in Seventh Schedule is merely to demarcate legislative fields between Parliament and State Legislatures and not to confer any legislative power. The several entries mentioned in the three Lists are fields of legislation. While exercising the legislative competence of a Legislature in regard to a particular enactment with reference to the entries in the various lists it is necessary to examine the pith and substance of the Act and to find out if the matter comes substantially within the item in the list. The express words employed in an entry would necessarily include incidental and ancillary matters so as to make the legislation effective. The scheme of the Act under scrutiny, its object and purpose, its true nature and character and the pith and substance of the legislation are to be focused at.

If the matter is within the exclusive competence of State Legislature, i.e., List II then the Union Legislature is prohibited to make any law with regard to the same. Similarly, if any matter is within the exclusive competence of the Union, it becomes a prohibited field for the State Legislatures. The concept of occupied filed is relevant in the case of laws made with reference to entries in List III. The doctrine of covered field has to be applied only to the Entries in List III. This proposition of law is well settled in a number of decisions of this Court including State of A.P. v. Mcdowell & Co., (AIR 1996 SC 1627), State of Rajasthan v. Vatan Medical & General Store, (AIR 2001 SC 1937) and Shri Krishsna Gyanoday Sugar Ltd. v. State of Bihar, (AIR 2003 SC 3436).

The relevant entries of the Constitution Schedule VII are as follows:

List II Entry 63:

"63. Rates of stamp duty in respect of documents other than those specified in provisions of List I with regard to the rates of stamp duty."

List III Entry 44

"44. Stamp duties other than duties or fees collected by means of judicial stamps but not including rates of stamp duty"

List I Entry 91

"91. Rates of stamp duty in respect of Bill of Exchange, cheques, promissory notes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts."

List I Entry 43

"43. Incorporation, regulation winding up of trading corporation including banks insurances and finance corporations but not including corporative societies."

List I Entry 44

"43. Incorporation, Regulation and winding up of corporations, whether trading or not with object not confined to one state but not including universities."

List I Entry 97

"97. Any other matter not enumerated in List II and List III, including any tax not mentioned in either of any those lists."

The Union under Entry 91 of List I can prescribe rates of stamp duty in respect of Bill of Exchange, cheques, promissory notes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts. In exercise of power conferred by Entry 63 List II it is open for the State Legislature to make amendment in the Act in regard to the rates of Stamp duty in respect of documents other than those specified in provisions of List I.

As discussed above, the order passed under Section 394 is founded on consent and this order is an instrument as defined under Section 2 (1) of the Bombay Stamp Act. The State Legislature would have the jurisdiction to levy stamp duty under Entry 44 List III of the Seventh Schedule of the Constitution and prescribes rate of stamp duty under Entry 63 List II. It does not in any way impinge upon any entry in List I. Entry 44 of List III empowers the State Legislature to provide for stamp duties other than duties or fees collected by means of judicial stamps. Along with this, Entry 63 of List II empowers the State Legislature to prescribe rates of stamp duty in respect of documents other than those specified in the provisions of List I, that is to say, rates of stamp duty in respect of Bill of Exchange, cheques, promissory notes, Bill of landing, letter of credit, policies of insurance, transfer of shares, debentures, proxies and receipts. By sanctioning of amalgamation scheme, the property including the liabilities are transferred as provided in Section 394 of the Companies Act and on that transfer instrument, stamp duty is levied. It, therefore, cannot be said that the State Legislature has no jurisdiction to levy such duty.

Charging Section, i.e., Section 3 of the Bombay stamp Act reads:

"3. Instrument chargeable with duty. Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable with duty of the amount indicated in Schedule I as the property duty therefor respectively, that is to say -

(a) every instrument mentioned in Schedule I, which not having been previously executed by any person, is executed in the State on or after the date of commencement of this Act;

(b) every instrument mentioned in Schedule I, which not having been previously executed by any person, is execute out of the State on or after the said date, relates to any property situate, or to any matter or thing done or to be done in this State and is received in this State:

The duty charged by the State Legislature is on the instrument and is on the execution of the instrument. The measure of charging stamp duty may be fixed or ad-valorem which is to be determined by the Legislature. The basis for computation of stamp duty can be determined by the State Legislature and it may be on the basis of the market value of the property transferred or at a fixed amount. It is open to the State Legislature to lay down that the basis for computing stamp duty shall not be the amount or value of the consideration of the conveyance as set forth therein but it shall be the market value of the property which is the subject matter of conveyance.

The Maharashtra Tax Laws (Levy, Amendment and Validation) Act, 1997 was enacted whereby in Article 25 of the Schedule I of the Bombay Stamp Act, 1958 Clause (da) and Explanation III were added with retrospective effect prescribing the rates at which the duty was to be calculated and levied. Vires of this provision of this Act were not challenged in the writ petition.

... ... ... ... It was also contended that in the guise of the stamp duty the State Legislature is in reality imposing a tax on the amalgamation of the companies and has therefore encroached on the field of the Parliament under Entry 43, List I of the Constitution. We do not find any substance in this submission as well. Stamp duty is levied on the instrument and the measure is the valuation of the property transferred. There is no question of encroachment on the field of Parliament under Entry 43, List I of the Constitution which empowers the Union to make laws re: incorporation, regulation winding up of trading corporation including banks insurances and finance corporations but not including corporative societies. The follow up legislation under Entry 43 List I is totally different from the levy of stamp duty and of prescribing rate of stamp duty on such documents. The Bombay Stamp Act does not provide for any Legislation with regard to incorporation, regulation and winding up of corporations. It only levies the stamp duty and prescribes the rate of stamp duty in respect of documents by compromise or arrangement."

Even a Division Bench of this Court to which one of us (S.C. Dharmadhikari, J.) was a party had an occasion to consider a somewhat similar situation in the case of State Bank of India & Ors. v. State of Maharashtra, (2016 (3) ABR 386). In paragraph 28 and 29, this Court referred to Entry 63 and to uphold the competence of the State legislature.

We, therefore, find substance in the contentions of Mr. Aney regarding the legislative competence. In the present case, we have to judge the legality and validity of the impugned Article by applying Entry 63 of List II and Entry 44 in List III.

We see, therefore, no substance in the contentions of Mr. Dwarkadas to this effect. The reliance placed by Mr. Aney on a decision of this Court in Civil Reference No.1 of 2007 in Writ Petition No.1293 of 2007 and Reference Application No.8 of 2005 : (AIR 2016 Bom. 108 (FB)) The Chief Controlling Revenue Authority, Maharashtra State, Pune & Anr. v. M/s. Reliance Industries & Anr. to be appropriate and apposite. Once the matter is approached from this angle, then, any larger issue and with reference to applicability of the rule of pith and substance need not be considered.

Now we come to the main aspect of the matter and that is whether the impugned Article in any contravenes the freedom of speech and expression. Before we consider it, we must reiterate the settled tests for construing a enactment like the Maharashtra Stamp Act, 1958. Firstly, the Act is intended to collect revenue by levying duty by way of stamps on documents executed in the State or brought from outside for acting upon the same in the State. Secondly, the Stamp Act does not apply to the transaction, but to the document recording the transaction. Thirdly, the document has to be read as it is, that is, as it is worded or drafted. Its language or contents are to be taken into account without any collateral or outside evidence.

Mr. Dwarkadas has placed reliance upon Article 19 of the Constitution of India. The title to it is "Right to Freedom". Article 19(1)(A) guarantees to all citizens the right to freedom of speech and expression. Further, by clause (2) of Article 19(1) of the Constitution of India, the reasonable restriction that is placed on this freedom is in the interest of sovereignty and integrity of India, the security of the State, friendly relations with Foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. These words were inserted by the Constitution (Sixteenth Amendment) Act, 1963. It is argued that none of these contemplate levy of a tax or fiscal measure and, therefore, that is not a reasonable restriction but an interference or obstruction, which is ex-facie illegal.

This right is cherished and zealously guarded by the Courts in India. It has always been upheld and whenever there is an attack on it the inquiry is directed towards the reasonableness of the restrictions imposed on it. If there is a challenge to any legislation or act of Executive on the ground that this right is jeopardized or violated, then, the courts have been insisting upon materials to demonstrate as to whether the restrictions placed resulting in violation of this right are reasonable. The inquiry then is in the backdrop and context of these words inserted by the Constitution (Sixteenth Amendment) Act. Anything outside this clause is not termed as a reasonable restriction and, therefore, either the legislation or the Executive act is struck down. It is, therefore, necessary for us to find out whether the Maharashtra Stamp Act by the impugned amendment, has in any way encroached upon this right as complained by Mr. Dwarkadas.

It is common ground that the agreement or its records or memorandum of an agreement is an instrument attracting stamp duty. Schedule I of the Maharashtra Stamp Act,1958, and particularly Article No.5 provides for imposition of a duty on agreement or its records or memorandum of an agreement if relating to the sale of a bill of exchange, if relating to purchase or sale of a Government securities etc., if it relates to any advertisement on mass media then the Article 5(h)(A) comes into play.

In that regard, Mr. Aney has brought to our notice by a chart that stamp duty was levied on such agreement even earlier and in that regard he relies upon the expression under the description of instrument in Article 5(h)(A) "if not otherwise provided for". He would submit that based on this description of instrument, stamp duty was leviable and from 7th May, 2005, the instrument relating to an advertisement on mass media for promotion of any product or programme or event with an intention to make profits or business out of it has been brought in specifically. Mr. Aney, therefore, submits that the petitioners had no grievance until the wording was as above. Thus, stamp duty was leviable on all such agreements of advertisement in newspapers or mass media even before the present amendment was made. He would submit that the legislature seeks to make something explicit which was implicit earlier.

While it is not necessary to go into this aspect in further details, we may agree with Mr. Dwarkadas that the amendment brings in an instrument of the type set out in Article 5(h)(A) for the first time, still, applying the same tests as propounded by the petitioners we would have to consider whether by introduction of stamp duty on instruments, namely, agreements relating to advertisements in mass media has the State interfered with the citizens'' right to free speech and expression which covers the freedom of press.

Mr. Dwarkadas has relied upon the judgments of the Hon''ble Supreme Court to submit that even commercial speech is covered by this Article. We do not think that there is any dispute about this and that would indeed be covered. We have to first see as to how the petitioners have discharged the initial burden placed on them by law. It is too well settled to require any reiteration that there is always a presumption about constitutionality of a statute. The burden is on one who challenges a statute or a provision therein as unconstitutional and ultra vires to aver, establish and prove as to how that statutory provision is unconstitutional. That burden has to be discharged by clear assertions and averments for constitutional courts do not engage themselves in any academic discussion nor do they entertain an academic challenge. The challenge must be real. The challenge must be raised with adequate and proper pleadings, minimum basic particulars and details and not in vague or general terms.

The petitioners have stated in the writ petition that their interests are diverse. One set of the petitioners are advertisers (Advertising Agency Association of India), the second set of the petitioners are the Indian Newspaper Society and Indian Society of Advertisers and finally the Indian Broadcasting Foundation. The Writ Petition, as far as it relates to advertisers is concerned, states that the members of such advertising association would be directly effected by the impugned levy, inter alia, because the instruments sought to be taxed are often executed by the Advertising Agencies themselves (on behalf of their clients) and the imposition of the impugned stamp duty will inevitably raise the cost of advertising thereby having a direct effect on the business of advertising in the State of Maharashtra. We do not think that Mr. Dwarkadas has built the challenge at the instance of such advertising agencies for their right is restricted to carrying on trade, business, occupation etc. of their choice. That right flows from Article 19(1)(g) of the Constitution of India.

It is too well settled as far as this right is concerned that is also subject to a reasonable restriction which is carved out by clause 6 of Article 19 and that enables making of a law or operation of any existing law imposing reasonable restrictions on the exercise of this right and in particular when such restrictions are aimed at the interest of general public. There can be a restriction placed and in the manner set out in this clause.

In this Writ Petition, at the instance of advertisers and the advertising agencies, the main challenge is not raised. The advertisers, TV channels etc. enjoy a right of free speech and expression, namely, of commercial speech. The commercial speech includes advertisements for promoting and publicising a product and event. Such advertisements are printed, published, circulated and displayed in mass media. The argument is not that there is any curbing or prohibition of this right, but by imposition of duty or tax, the cost of advertisement increases and that curtails the exercise of this right. No manufacturer, promoter of a product or event is before us. Their right to insert any advertisement or promotional material is not interfered nor is it in any peril of being unduly restricted. The reliance placed by Mr. Dwarkadas on the judgments of the Hon''ble Supreme Court in the case of Tata Press Ltd. (supra) and Secretary, Ministry of Information and Broadcasting, Government of India v. Cricket Association of Bengal & Ors. (supra) are misplaced as in these cases there was a clear case of undue, uncalled for an impermissible interference and restraint on this commercial speech and the freedom guaranteed in that behalf. Such is not the case here. The only complaint of the advertisers could be that their profits and gains would decrease if the cost of inserting an advertisement goes up. Their business is reduced is no ground to raise the above challenge. Thus we presume that the plea of violation of the mandate of Article 19(1)(a) of the Constitution is raised at the instance of the news paper industry. Therefore, we do not think that the advertisers nor the advertising agencies nor their association can complain of violation of the right to freedom of speech and expression. At best, we will examine the challenge at the instance of the newspaper industry and the broadcasting foundation.

There as well, what we find is that apart from referring to the general principles, all that is set out in support of this challenge is on paragraph B (vii) at page 18A of the writ petition. That reads as under :

"(vii) The ad valorem rate of stamp duty for advertisement contracts would have the direct and proximate effect of causing advertisers to place their advertisements in newspapers/forms of mass media whose rates of advertisements are less. It is also very likely that advertisers would choose to advertise through mediums/newspapers and enter into contract outside the territory of the State of Maharashtra so as to avoid in the levy of stamp duty completely. This would result in a loss of advertising revenue to such newspapers (and other forms of mass media) that are in a position to command a particular rate for their advertisements due to their substantial circulation. The advertisement revenue for such newspaper, in turn, facilitates the vast circulation as it allows for the newspaper to be sold at a subsidized rate, thereby largely benefiting the consumer/recipient if the information and news. Any loss of advertisement revenue by the imposition of an ad valorem stamp duty rate, would have the direct effect of causing the newspaper to raise its purchase price and thereby affect the circulation of the newspaper. Thus, the impost of stamp duty directly impinges upon the right of the petitioners under Article 19(1)(a) of the Constitution of India in publishing advertisements that are a protected form of commercial speech. Similarly, the impost of stamp duty would as a consequence impinge upon the right of the public at large to receive news and information, as the loss of advertisement revenue would inevitably affect the affordability and circulation of the news information."

We have no doubt in our mind and for that matter none can dispute that commercial speech is part and parcel of this right guaranteed by Article 19(1)(a). Nobody can dispute that the advertisements and advertising revenue enable the newspaper industry to subsidize the price of the newspapers and keep them within reasonable limits. To maintain the balance between the cost of printing and publishing newspapers and still keep the price within such limits, the newspapers have to earn a revenue by advertisements. The manufacturers of products and those holding events etc. insert advertisements in the newspapers and newspapers reserve certain pages and spaces for this purpose. All this comes at a price. Once the price is paid and the revenue is generated from these advertisements, then, the newspaper industry can secure for itself the news print and, by installing state of the art machinery, print and publish newspapers, particularly the daily newspapers, magazines and periodicals. Thus, large number of them survive on advertisement revenue. However, we have to still consider as to whether the challenge in this Writ Petition raised by this Indian Newspaper Society is remote and far fetched as urged by Mr. Aney or as highlighted by Mr. Dwarkadas, this aspect need not be established and proved. Meaning thereby, the direct and immediate impact need not be established and proved.

Mr. Dwarkadas has relied upon certain decisions to support the above principles and we would have to necessarily refer to them.

Mr. Dwarkadas relied upon Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors., (AIR 1986 SC 515). The Hon''ble Supreme Court was examining the question framed by it in the backdrop of the Working Journalists (Conditions of Service) and Miscellaneous Provisions Act, 1955. There was a decision of the Wage Board constituted thereunder. The Supreme Court found that the newspaper industry in India did not originally start as an industry, but as individual newspapers founded by leaders in national, political and social so also economic fields. However, later on it developed characteristics of a profit making industry in which big industrialists invested money to control several newspapers all over the country. The working journalists except for the comparatively large number that were found concentrated in the big metropolitan cities, were scattered all over the country and were insisting on their wages and salaries, dearness allowance etc. being determined so that an impartial agency does that and they are not subjected to the whims and fancies of the persons controlling the newspaper industry. Therefore, Committees were appointed and later on the enactment was brought into force. The challenge was raised in the context of the burden that would fall on the newspaper industry if it has to abide by and implement this law.

In dealing with such an issue and particularly whether this would have an impact on the freedom of speech and expression guaranteed to the citizen of which the freedom of press is a part and parcel, the Hon''ble Supreme Court noted that the fixation of bare minimum or subsistence wage would have to be irrespective of the capacity of the industry to pay. The minimum wage thus contemplated postulates the capacity of the industry to pay and no fixation of wages which ignore this essential factor of capacity to pay would ever be supported. The principles which go into the fixation of minimum wage were then examined and at great length.

We do not, therefore, read paragraph 150 of this judgment appearing at page 617 of the AIR volume in isolation. Rather, this paragraph would clarify as to how the Hon''ble Supreme Court holds that there is no immunity from the general laws which can be claimed by the press. At the same time, it would certainly not be legitimate to subject the press to laws which take away or abridge the freedom of speech or expression or which would curtail circulation and thereby narrow the scope of dissemination of information or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid. Therefore, the Supreme Court holds that laws which single out the press for laying upon it excessive and prohibitive burdens which would restrict the circulation, impose a penalty on its right to choose the instruments for its exercise or to seek an alternative media, prevent newspapers from being started and ultimately drive the press to seek Government aid in order to survive, would, therefore, be struck down as unconstitutional.

We are bound by this principle and which must be applied to every case raising the challenge of the nature raised in this petition.

After examining the contours of the freedom, the Hon''ble Supreme Court in paragraph 159 of this judgment held that the main object of the Working Journalists Act was to regulate the condition of service. That is sought to be achieved by various provisions and chapters. If the provisions contained in the Act and its true nature as noted above is considered, then, the Hon''ble Supreme Court came to a conclusion that the Act was not designed to affect the freedom of speech and expression enjoyed by the Express Newspapers Limited or that, that was its necessary effect and operation. Rather, it was conceded in the course of arguments before the Hon''ble Supreme Court in that case that if a general law in regard to industrial or labour relationship had been applied to the press industry as a whole, no exception could have been taken to it. In concluding thus, the Supreme Court went on further and observed as under :

"160. It is obvious that the enactment of this measure is for the amelioration of the conditions of the workmen in the newspaper industry. 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. 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. 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. 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. 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 conditions of the workmen. 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. That, however, would be a consequence which would be extraneous and not within the contemplation of the Legislature. 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. 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 undermined by having to seek government aid; the imposition of penalty on the petitioners'' right to choose the instruments for exercising the freedom or compelling them to seek alternative media, etc., would be remote and depend upon various factors which may or may not come into play. 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. 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.

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 amelioration of their conditions of service must necessarily affect the newspaper establishments and have its repercussions on the freedom of Press. The impugned Act can therefore be legitimately characterized as a measure which affects the press, and if the intention or the proximate effect and operation of the Act was such as to bring it within the mischief of Article 19 (1) (a) it would certainly be liable to be struck down. 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.

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 other employees of industrial establishments, the Act has left the fixation of rates of wages to an agency invested with arbitrary and uncanalised powers to impose an indeterminate burden on the wage structure of the press, to impose such employer-employee relations as in its discretion it thinks fit and to impose such burden and relation-, for such time as it thinks proper. This contention will be more appropriately dealt with while considering the alleged infringement of the fundamental right enshrined in Article 19(1)(g). 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."

Hence, one has to be guided by the above principles and if one finds in the present case that the Maharashtra Stamp Act which is, as noted by us above, an Act to amend and consolidate the law relating to stamps and stamp duties, it being a fiscal measure enacted for the purposes of enabling the State to generate revenue by charging a duty on various instruments as covered by its charging section, then, it will not be possible to agree with Mr. Dwarkadas that by insertion of Article 5(h)(A) and bringing within its import the instrument styled as an agreement for advertisement in mass media, one cannot, therefore, assume that every advertisement inserted in the newspaper alone is singled out. It is an advertisement in mass media. If one goes by the ordinary dictionary meaning of the term mass media, newspaper is but a part and parcel of it. Mass media would include radio and television as well.

Therefore, it is not as if the advertising revenue of the newspaper alone is targeted or by imposing a burden on the newspapers to necessarily pay the duty for the advertisements inserted in it, the attempt is to control the circulation or, as the Hon''ble Supreme Court would hold, its scope of dissemination of information. We cannot come to this conclusion once we read the Maharashtra Stamp Act as a whole. All its provisions will have to be read together and harmoniously. So read, we do not think that this enactment in any way aims to bring the newspaper industry under State control or forces it to survive on Government aid. Thus, the test as carved out of singling out the press and imposing upon it excessive and prohibitive burdens which would restrict the circulation is not the conclusion that we can reach in the context and the backdrop of the Maharashtra Stamp Act, 1958.

Mr. Dwarkadas must, therefore, show us something more than merely urging what the Supreme Court has observed in general terms. Our criticism is justified once we immediately refer to the next case relied upon by Mr. Dwarkadas.

The next case that is relied upon by Mr. Dwarkadas is Sakal Papers (P) Ltd. & Ors. v. Union of India (AIR 1962 SC 305) (supra). Once again, Mr. Dwarkadas overlooks that the challenge in this case was to an Act styled as Newspaper (Price and Page) Act, 1956, and the Daily Newspaper (Price and Page) Order, 1960. After highlighting in paragraphs 2 to 4 as to how Sakal Papers a daily and weekly newspaper in Maharashtra has a wide circulation and is priced reasonably, what the Hon''ble Supreme Court held is that the effect of the Act and the impugned order is to regulate the number of pages according to the price charged, prescribe the number of supplements to be published and prohibit the publication and sale of the newspaper in contravention of any order made under section 3 of the Act. The Act also provides for regulating by an order under section 3, the sizes and area of advertising matter in relation to other matters contained in a newspaper. Penalties are also prescribed for contravention of the provision of the Act or Order. It is in dealing with a challenge to the constitutionality and legality and validity of such a legislation/regulation that the Hon''ble Supreme Court following Express Newspapers (supra) held that if the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense but bearing in mind the rights enshrined in it as fundamental, then, a broad interpretation thereof is contemplated. After referring to certain decided cases, the Hon''ble Supreme Court, in paragraphs relied upon by Mr. Dwarkadas, comes to the following conclusion :

"27. In Express Newspapers (Private) Ltd. and Anr. v. The Union of India, (AIR 1958 SC 578), this Court has laid down that while there is no immunity to the press from the operation of the general laws it would not be legitimate to subject the press to laws which take away or abridge the freedom of speech and expression or adopt measures calculated and intended to curtail circulation and thereby narrow the scope of dissemination of information, or fetter its freedom to choose its means of exercising the right or would undermine its independence by driving it to seek Government aid. This Court further pointed out that a law which lays upon the Press excessive and prohibitive, burdens which would restrict the circulation of a newspaper would not be saved by Article 19(2) of the Constitution.

It must-be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our Constitution as fundamental and, therefore, while considering the nature and content of those rights the Court must not be too astute to interpret the language-of the Constitution in so literal a sense as to whittle them down. On the other hand the Court must interpret the Constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions. Bearing this principle in mind it would be clear that the right to freedom of speech and expression carries with it the right to publish and circulate one''s ideas, opinions and views with complete freedom and by resorting to any available means of publication subject again to such restrictions as could be legitimately imposed under clause (2) of Article 19. The first decision of this Court in which this was recognised is Romesh Thapar. There, this Court held that freedom of speech and expression includes freedom of propagation of ideas and that this freedom is ensured by the freedom of circulation. In that case this Court has also pointed out that freedom of speech and expression are tie foundation of all democratic organisations and are essential for the proper functioning of the processes of democracy. There and in other cases this Court pointed out that very narrow and stringent limits have been set to permissible legislative abridgment of the right of freedom of speech and expression. In State of Madras v. V.G. Row (AIR 1952 SC 196) the question of the reasonableness of restrictions which could be posed upon a fundamental right has been considered. This Court has pointed out that the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and scope of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at that time should all enter into the judicial verdict. In Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd. (AIR 1954 SC 119) this Court has pointed out that in construing the Constitution it is the substance " and the practical result of the act of the State that should be considered rather than its purely legal aspect. The correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction. In Virendra v. State of Punjab (AIR 1957 SC 896) this Court has observed at p. 319 as follows :

"It is certainly a serious encroachment on the valuable and cherished right of freedom of speech and expression if a newspaper is ,prevented from publishing its own or the views of its correspondents relating to or concerning what may be the burning topic of the day".

... ... ... ...

It is, however, said that it is not necessary for newspapers to raise their prices but that they could reduce their number of pages. For one things, requiring newspapers to reduce their sizes would be compelling them to restrict the dissemination of news and views and thus directly affecting their right under Article 19(1)(a). But it is said that the object could be achieved by reducing the advertisements. That is to say, the newspapers would be able to devote the same space which they are devoting today to the publication of news and views by reducing to the necessary extent the space allotted to advertisements. It is pointed out that news-papers allot a disproportionately large space to advertisements. It is true that many newspapers do devote very large areas to advertisements. But then the Act is intended to apply also to newspapers which may carry no or very few advertisements. Again, after the commencement of the Act and the coming into force of the Order a newspaper which has a right to publish any ''number of pages for carrying its news and views will be restrained from doing so except upon the condition that it raises the selling price as provided in the schedule to the Order. This would be the direct and immediate effect of the Order and as such would be violative of the right of newspapers guaranteed by Article 19(1)(a).

Again, Section 3(1) of the Act in so far as it permits the allocation of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote, but a direct consequence of curtailment of advertisements.

We would consider this matter in another way also. The advertisement revenue of a newspaper is proportionate to its circulation. Thus the higher the circulation of a newspaper the larger would be its advertisement revenue. So if a newspaper with a high circulation were to raise its price its circulation would go down and this in turn would bring down also the advertisement revenue. That would force the newspaper either to close down or to raise its price. Raising the price further would affect the circulation still more and thus a vicious cycle would set in which would ultimately end in the closure of the newspaper. If, on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of the Act in regulating the space for advertisements is stated to be to prevent "unfair'' competition. It is thus directed against circulation of a newspaper. When a law is intended to bring about this-result there would be a'' direct interference with the right of freedom of speech and expression guaranteed under Article 19(1)(a).

Since the very object of the'' impugned law is to affect the circulation of certain newspapers which, are said to be practising unfair competition it is difficult to appreciate how it could be sustained. The right to freedom of speech and expression is an individual right guaranteed to every citizen by Article 19(1)(a) of the Constitution. There is nothing in clause (2) of Article 19 which permits the State, to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under clause (2) of Article 19. It is admitted that the impugned provisions cannot be justified on the grounds referred to in the aforesaid clause.

It was, however, contended on behalf of the State that there are two aspects of the activities of newspapers-the dissemination of news and views and the commercial aspect. These two aspects, it is said fare different from one another and under clause (6) of Article 19 restrictions can be placed on the latter right in the interest of the general public. So far as it is relevant for the purpose of the argument clause (6) reads thus:

"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 the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause �."

It may well be within the power of the State to place, in the interest of the general public, restrictions upon the right of a citizen to carry on business but it is not open to the State to achieve this object by directly and immediately curtailing any other freedom of that citizen guaranteed by the Constitution and which is not susceptible of abridgment on the same grounds as are Bet out in clauses (6) of Article 19. Therefore, the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen. Freedom of speech can be restricted only in the interests of the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. It cannot, like the freedom to carry on business, be curtailed in the interest of the general public. If a law directly affecting it is challenged it is no answer that the restrictions enacted by it are justifiable under clauses (3) to (6). For, the scheme of Art is to enumerate different freedoms separately and then to specify the extent of restrictions to which they may be subjected and the objects for securing which this could be done. A citizen is entitled to enjoy each and every one of the freedoms together and clause (1) does not prefer one freedom to another. That is the plain meaning of this clause. It follows from this that the State cannot make a law which directly restricts one freedom even for scouring the better enjoyment of another freedom. All the greater reason, therefore for holding that the State cannot directly restrict one freedom by placing an otherwise permissible restriction on another freedom.

Viewing the question from this angle it would be seen that the reference to the Press being a business and to the restriction imposed by the impugned Act being referable or justified as a proper restriction on the right to carry on the business of publishing a, newspaper would be wholly irrelevant for considering whether the impugned Act infringes or does not infringe the freedom guaranteed by Article 19(1)(a).

The only question that would then remain would be whether the impugned enactment directly impinges on the guarantee of freedom of speech and expression. It would directly impinge on this freedom either by placing restraint upon it or by placing restraint upon something which is an essential part of that freedom. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. Perhaps an illustration would make the point clear. Let us suppose that the enactment had said that newspaper "A'' or newspaper "B'' (ignoring for the moment the objection to the illustration based upon Article 14 shall not have more than a specified number of subscribers. Could such a law be valid in the face of the guarantee under Article 19(1)(a)? The answer must unhesitatingly be no, because such a law would be recognised as directly impinging upon the freedom of expression which encompasses freedom of circulation and to restrain the citizen from propagating his views to any other beyond the limit or number prescribed by the statute. If this were so, the fact that the legislation achieves the same result by means of the schedule of rates makes no difference and the impact on the freedom would still be direct notwithstanding that it does not appear so on its face."

It is material for us to note that the whole edifice of the case of the petitioners before us is built and structured on these paragraphs. By reproduction of these paragraphs in the writ petition and particularly paragraph 33, we cannot arrive at the conclusion desired by Mr. Dwarkadas. While it is true that the advertisements in a newspaper are ordinarily proportionate to its circulation, the higher the circulation of the newspaper, the larger would be its advertisement revenue. So if the price goes up, its circulation would go down and bring down the advertisement revenue but all this must be seen and considered in the backdrop of the legislation which is challenged. In both the cases, namely, Sakal Papers and in Bennett Coleman v. Union of India reported in AIR 1973 SC 106, the law and the Executive act directly affected the advertising revenue. The number of pages being curtailed, the price of advertisement and the pages devoted to the same being brought under regulation and control that the Hon''ble Supreme Court held that it is not open to the State to curtail the freedom of speech and expression for promoting the general welfare of a section or group of people unless its action could be justified under the law competent under clause (2) of Article 19. It is bearing in mind the legislation involved that the Hon''ble Supreme Court held that the enactment directly impinges on the guarantee of freedom of speech and expression. In the present case, the only pleading as we have reproduced above is a verbatim copy of paragraph 33 of Sakal''s judgment. By that we cannot assume as noted above that the advertising agencies who are approached by the manufacturers or event holders aiming at profit and executing a written instrument for insertion of their advertisements having been required to pay the duty, that the advertisers would not be then able to generate enough advertisements for being inserted in the mass media. The presumption that the petitioners desire to raise is that there would be an impact on the advertisers and advertising agencies. That would directly reduce the number of advertisements in mass media and that is how the price of the newspapers will go up and that would affect and impact its circulation. Hence, the first tier instrument attracting the stamp duty, the second tier instrument which involves the mass media, including the press also attracting that very duty, all this would have a direct effect on the advertising revenue and consequently the circulation. These are the assumptions based on which we would have to presume that Article 5(h)(A) violates the mandate of Article 19(1)(a) of the Constitution of India. The approach in this case compels us to observe that all that the petitioner have done is to pick and choose some isolated paragraphs of the above judgments to mount the challenge. That would not be proper. That is not how a constitutional challenge can be raised and considered. There is no material other than the general and vague assumptions noted above. From the time the amendment has been brought into force, namely, from 2005 till date how it has impacted the newspaper industry has never been clarified and explained by the petitioners. How the Broadcasting Council or Association can raise the challenge, that in a multi channel television industry possibly every channel whether it is a news channel or entertainment channel or otherwise is not in a position to generate commercial advertisements, has not been clarified at all. We cannot ignore the fact that newspapers, magazines, radio and television are ordinarily identified as mass media. Nowadays, the newspapers have not only printed, but electronic editions too. That is true about periodicals and magazines as well. The reach and sweep of commercial speech is thus immense. One cannot assume that television programmes and channels, though viewed on internet and mobiles would not attract public attention and that they would have to make special efforts. It is not necessary that people watch television within the confines of their residence or office. Television programmes now can be viewed on computers, laptops and mobiles. Even newspapers, periodicals and magazines can be read and browsed by taking recourse to all these gadgets. Hence, modern and ultra modern facilities for reading and viewing advertisements being available, it was entirely for the petitioners to establish and prove that despite all this, by imposition of stamp duty on instruments relating to advertisement in mass media, the citizens freedom of speech and expression as guaranteed by the Constitution of India is violated or breached. They have to provide details as to how this levy is imposing unreasonable restrictions on the said freedom. We think that the petitioners have miserably failed to prove the same.

We are of the opinion that Express Newspapers (supra) followed in Sakal and that was most appropriate and apposite. Given the nature of the regulation and control, the challenge was upheld. The tests evolved for the purpose of such challenge were fully satisfied. We do not think that by mere reliance on these two judgments, the petitioners challenge can be carried forward.

Both the decisions were considered in great detail in the case of Bennett Coleman & Co. (supra). The ambit and scope of the freedom of speech and expression is spelt out in this decision with absolute clarity and precision. The relevant paragraphs are as under :

"34. Publication means dissemination and circulation. The press has to carry on its activity by keeping in view the class of readers, the conditions of labour, price of material, availability of advertisements, size of paper and the different kinds of news comments and'' views and advertisements which are to be published and circulated. The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19(2). If the area of advertisement is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Paper case (1962) 3 SCR 842 = (AIR 1962 SC 305) (supra) to be the direct consequence of curtailment of advertisement. The freedom of a newspaper for publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental rights under Article 19(1)(a) on the aspects of propagation, publication and circulation.

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Mr. Palkhivala said that the tests of pith and substance of the subject, matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgment of the right of free speech by the impugned law or action it is to be, related to the directness of effect and not to the directness of the subject matter of the impeached law or action. The action may have a direct effect on a fundamental, right although its direct subject matter may be different. A law'' dealing directly with the Defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word "direct" would go to the quality or character of the effect and not to the subject matter. The object of the law or executive action is irrelevant when it establishes the petitioner''s contention about fundamental right. In the present case, the object of the newspaper restrictions has nothing to do with the availability of newsprint or foreign exchange because these restrictions come into operation after the grant of quota. Therefore the restrictions are to control the number of pages or circulation of dailies or newspapers. These restrictions are clearly outside the ambit of Article 19(2) of the Constitution. It, therefore, confirms that the right of freedom of speech and expression is abridged by these restrictions.

The question neatly raised by the petitioners was whether the impugned Newsprint Policy is in substance a newspaper control. A newspaper control policy is ultra vires the Import Control Act and the Import Control Order. Entry 19 of List I of the 1935 Act could empower Parliament to control imports. Both the State legislature and Parliament have power to legislate upon newspapers falling under Entry 17 of List III. The two fields of legislation are different. The Import Control Act may include control of import of newsprint but it does not allow control of newspapers. The machinery of the Import Control cannot be utilised to curb or control circulation of growth or freedom of newspapers in India. The pith and substance doctrine is used in ascertaining whether the Act falls under one Entry while incidentally encroaching upon another Entry. Such a question does not arise here. The Newsprint Control Policy is found to be newspaper control order in the guise of framing an Import Control Policy for newsprint.

This Court in the Bank Nationalisation case (1970) 3 SCR 530 : (AIR 1970 SC 564) (supra) laid down two tests. First it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right. Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights forms the real test.

In Sakal Papers case (1962) 3 SCR 842 : (AIR 1962 SC 305) (supra) this Court referred to the ruling in Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd., 1954 SCR 674 : (AIR 1954 SC 119) that it is the substance and the practical result of the act of the State that should be considered rather than the pure legal form. The correct approach should be to enquire what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the, restrictions. In Sakal Papers case (supra) raising the price affected and infringed fundamental rights. In Sakal Papers case (supra) this Court said that the freedom of a newspaper to publish any number of pages or to circulate it to any number of persons is each an integral part of the freedom of speech and expression. A restraint placed upon either of them would be a direct infringement of the right of freedom of speech and expression. The impact on the freedom of the press would still be direct in spite of the fact that it is not said so with words. No law or action would state in words that rights of freedom of speech and expression are abridged or taken away. That is why Courts have to protect and guard fundamental rights by considering the scope and provisions of the Act and its effect upon the fundamental rights. The ruling of this Court in Bank Nationalisation case (1970) 3 SCR 530 : (AIR 1970 SC 564) (supra) is the test of direct operation upon the rights. By direct operation is meant the direct consequence or effect of the Act upon the rights. The decision of the Privy Council in Commonwealth of Australia v. Bank of New South Wales, 1950 ac 235 also referred to the test, as to whether/the Act directly restricted inter-State business of banking, in order to ascertain whether the Banking Act 1947 in that case is aimed or directed at, and the purpose, object and intention of the Act is restriction of inter-State trade, commerce and inter-course.

The various provisions of the newsprint import policy have been examined to indicate as to how the petitioners'' fundamental rights have been infringed by the restrictions on page limit, prohibition against new newspapers and new editions. The effect and consequence of the impugned policy upon the newspapers is directly controlling the growth and circulation of newspapers. The direct effect is the restriction upon circulation of newspapers. The direct effect is upon growth of newspapers through pages. The direct effect is that newspapers are deprived of their area of advertisement. The direct effect is that they are exposed to financial loss. The direct effect is that freedom of speech and expression is infringed.

... ... ... ...

It is indisputable that by freedom of the press is meant the right of all citizens to speak, publish and express their views. The freedom of the press embodies the right of the people to read. The freedom of the press is not antithetical to the right of the people to speak and express.

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This Court held in Hamdard Dawakhana case (1960) 2 SCR 671 : (AIR 1960 SC 554) (supra) that an advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. In Sakal Papers case (1962) 3 SCR 842 : (AIR 1962 SC 534) (supra) this Court held that if the space for advertisement is reduced earnings would decline and if the price is raised that would affect circulation. 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.

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The restriction on the petitioners that they can use their quota to increase circulation but not the page number violates Articles 19(1)(a) as also Article 14. Big dailies are treated to be equal with newspapers who are not equal to them. Again, the policy of 1972-73 permits dailies with large circulation to increase their circulation. Dailies operating below 10 page level are allowed increase in pages. This page increase quota cannot be used for circulation increase. Previously, the big dailies were allowed quota for circulation growth. The present policy has decreased the quantity for circulation growth. In our view counsel for the petitioners rightly said that the Government could not determine thus which newspapers should grow in page and circulation and which newspapers should grow only in circulation and not in pages. Freedom of press entitles newspapers to achieve any volume of circulation. Though requirements of newspapers as to page, circulation are both taken into consideration for fixing their quota but the newspapers should be thereafter left free to adjust their page number and circulation as they wish in accordance with the dictates of Article 19(1)(a) of the Constitution.

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Mr. Palkhivala said the policy worked admirably in the past because adjustability between pages and circulation was permitted. In our view the Newsprint Control has now been subverted to newspaper control. The growth of circulation does not mean that there should not be growth in pages. A newspaper expands with the news and views. A newspaper reaches different sections. It has to be left to the newspapers as to how they will adjust their newsprint. At one stage the Additional Solicitor General said that if a certain quantity of steel was allotted the Government could insist as to how it was going to be used. It was said that the output could be controlled. In our view, newsprint does not stand on the same footing as steel. It has been said that freedom of the press is indispensable to proper working of popular Government. Patnajali Sastri, J. speaking for this Court in Ramesh Thappar''s case, (1962) 3 SCR 842 : (AIR 1962 SAC 305) (supra) said that "Thus, every narrow and stringent limits have been set to permissible legislative abridgment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all democratic organization, for without free political discussion no public education, so essential for the proper functioning of the processes of popular Government, is possible". It is appropriate to refer to what William Blackstone said in his commentaries :

"Every free man has a undoubted right to lay what sentiments he pleases before the public; to forbid this is to destroy the freedom of the press-, but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity."

The faith of a citizen is that political wisdom and virtue will sustain themselves in the free market of ideas so long as the channels of communication are left open. The faith in the popular Government rests on the old dictum "let the people have the truth and the freedom to discuss it and all will go well". The liberty of the press remains an "Art of the Covenant" in every democracy. Steel will yield products of steel. Newsprint will manifest whatever is thought of by man. The newspapers give ideas. The newspapers give the people the freedom to find out what ideas are correct. Therefore, the freedom of the press is to be enriched by removing the restrictions on page limit and allowing them to have new editions or new papers. It need not be stressed that if the quantity of newsprint available does not permit grant of additional quota for new papers that is a different matter. The restrictions are to be removed.

Newspapers have to be left free to determine their pages, their circulation and their new editions within their quota of (sic) what has been fixed fairly.

... ... ...

In the present case, it cannot be said that the newsprint policy is a reasonable restriction within the ambit of Article 19(2). The newsprint policy abridges the fundamental rights of the petitioners in regard to freedom of speech and expression. The newspapers are not allowed their right of circulation-. The newspapers are not allowed right of page growth. The common ownership units of newspapers cannot bring out newspapers or new editions. The newspapers operating above 10 page level and newspapers operating below 10 page level have been treated equally for assessing the needs and requirements of newspapers with newspapers which are not their equal. Once the quota is fixed and direction to use the quota in accordance with the newsprint policy is made applicable the big newspapers are prevented any increase in page number. Both page numbers and circulation are relevant for calculating the basic quota and allowance for increases. In the garb of distribution of newsprint the Government has tended to control the growth and circulation of newspapers. Freedom of the press is both qualitative and quantitative. Freedom lies both in circulation and in content. The newsprint policy which permits newspapers to increase circulation by reducing the number of pages, page area and periodicity, prohibits them to increase the number of pages, page area and periodicity by reducing circulation. These restrictions constrict the newspapers in adjusting their page number and circulation.

... ... ...

This Court in Sakal Papers case (1962) 3 SCR 842 : (AIR 1962 SC 305) (supra) dealt with measures empowering the government to regulate allocation of space to be allotted for advertising matter. This Court held that the measure had the direct effect of curtailing the circulation of the newspaper and thus to be violation of Article 191)(a). It was said on behalf of the Government that regulation of space for advertisement was to prevent unfair competition. This Court held that the State could help or protect newly started newspapers but there could not be an abridgment of the right in Article 19(1)(a) on the ground of conferring right on the public in general or upon a section of the public.

The Additional Solicitor General contended that the business aspect of the press had no special immunity and the incidental curtailment in the circulation could not be freedom of speech and expression of the press. This Court in Sakai Papers case (1962) 3 SCR 842 : (AIR 1962 SC 305) (supra) dealt with the measures for the fixation of price in relation to pages and the regulation of allotment of space for advertisement by each paper. These measures were said to be commercial activities of newspapers. This Court said that restrictions could be put upon the freedom to carry on business but the fundamental right of speech and expression could not be abridged or taken away. There could be reasonable restrictions on that right only as contemplated under Article 19(2)."

Equally, we do not find the reliance on Indian Express Newspapers (Bombay) Private Limited v. Union of India & Ors. reported in (1985) 1 SCC 641 will assist the petitioners. There, the three Judge Bench of the Hon''ble Supreme Court was examining the constitutional validity of the imposition of import duty on news print imported from abroad under section 12 of the Customs Act, 1962 and Heading No.48.01/21 Heading No.(2) in the First Schedule to the Customs Tariff Act, 1975 and the levy of auxiliary duty under the Finance Act, 1981 on news print as modified by Notifications issued under section 25 of the Customs Act, 1962, with effect from 1st March, 1981.

The newspaper companies brought the challenge by urging that imposition of import duty has the direct effect of crippling the freedom of speech and expression guaranteed by the Constitution as it leads to the increase in the price of newspapers and inevitable consequence of reduction of their circulation. Requisite data, figures and materials were provided to the Hon''ble Supreme Court by pointing out as to how news print is allowed to small newspapers with a circulation of less than fifteen thousand at a price which does not include any import duty, to medium newspapers at a price which includes 5% ad valorem duty and to big newspapers having a circulation of over fifty thousand at a price which includes levy of 15% ad valorem duty. Now that is increased. The inflationary economic conditions have led to higher cost of production making it impossible for the industry to bear the duty any longer. Since the capacity to bear the duty is an essential element in determining the reasonableness of the levy, it was urged that the continuance of the levy is violative of Article 19(1)(a) and 19(1)(g) of the Constitution of India.

It is this challenge which was highlighted, noted and examined in great detail by the Hon''ble Supreme Court. It emphasized the freedom of speech and expression, the obstacles raised thereto, the restrictions unduly and unreasonably placed thereon, the increasing attempts, despite the Hon''ble Supreme Court judgments, to control the press by the Government in power and then in paragraphs 45 and 46, the Supreme Court examined the competence of the legislature. The very pertinent observations are to be found in paragraphs 65. 68 and 69, which read thus :

"65. Newspaper industry enjoys two of the fundamental rights, namely, the freedom of speech and expression guaranteed under Article 19(1)(g) 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 communication 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. While there can be no tax on the right to exercise freedom of expression, tax is leviable on profession, occupation, trade, business and industry. Hence tax is leviable 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). The delicate task of determining when it crosses from the area of profession, occupation, trade, business or industry into the area of freedom of expression and interferes with that freedom is entrusted to the courts.

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We have carefully considered the above two decisions. In the first case the Court was concerned with the newspaper price-page policy and in the second the newsprint policy imposed by the Government had been challenged. Neither of them was concerned with the power of Parliament to levy tax on any goods used by the newspaper industry. As we have observed earlier taxes have to be levied for the support of the Government and newspapers which derive benefit from the public expenditure cannot disclaim their liability to contribute a fair and reasonable amount to the public exchequer. What may, however, have to be observed in levying a tax on newspaper industry is that it should not be a 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 new 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 t that members of a democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves''. (Per Lord Simon of Glaisdale in Attorney-General v. Times Newspapers Ltd. Freedom of expression, as learned writers have observed, has four broad social purposes to serve: (i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengthens the capacity of an individual in participating in decision-making and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. All members of society should be able to form their own beliefs and communicate them freely to others. In sum, the fundamental principle involved here is the people''s right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration. 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 other matters concerning newspapers industry than while levying taxes on matters. It is true that this Court has adopted a liberal approach while dealing with fiscal measures and has upheld different kinds of taxes levied on property, business, trade and industry as they were found to be in the public interest. But in the cases before us the Court is called upon to reconcile the social interest involved in the freedom of speech and expression with the public interest involved in the fiscal levies imposed by the Government specially because newsprint constitutes the body, if expression happens to be the soul.

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 colourable device to confiscate. On the other hand, in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burdensome-ness, clearly and directly attributable to the tax."

The Hon''ble Supreme Court in the backdrop of this legislation held that in the case of ordinary taxing statutes, the laws may be questioned only if they are either openly confiscatory or a colourable device to confiscate. On the other hand, in the case of a tax on newsprint, it may be sufficient to show a distinct and noticeable burdensome-ness clearly and directly attributable to tax. Once again Mr. Dwarkadas only picks up this thread to support his contentions. However, he overlooks the fact that all the decided cases are involving tax on newsprint, allocation thereof indiscriminately and unequally, the orders controlling and regulating the number of pages, the area and space for advertisements and particularly in fiscal measures regarding newsprint, the test as above is evolved. Insofar as general levies and taxes, the tests evolved and applicable are the same and noted in paragraphs 68 and 69 reproduced above. Ours is not a case of tax on newsprint nor a tax on the content of the mass media. The petitioners forget that the Hon''ble Supreme Court does not hold that no tax can be levied on the newspaper industry. The Hon''ble Supreme Court holds that tax can be levied on the newspaper industry but when such tax transgresses into the field of freedom of speech and stifles it, it becomes unconstitutional. As long as it is within reasonable limits and does not impede freedom of expression it will not be contravening the limitation of Article 19(2) is equally the dictum. This distinction is impossible to overlook much less brushed aside. The Supreme Court was aware that a delicate task is entrusted to the Court. Therefore, everything depends upon the facts and circumstances in each case. The general principles are salutary in character. Their application depends upon the nature of the tax, the subject thereof, whether it is stifling the freedom of speech and expression to be termed as unconstitutional, whether the burden is such that the same clearly and directly is traceable to the tax, then, alone one can presume that the tax is unconstitutional for it impinges upon the freedom of speech and expression guaranteed to the citizen of India of which freedom of press is an integral part. Therefore, merely highlighting the role of newspapers in the society, the history of freedom struggle in India, the role played by the press therein, the place it enjoys in democracy are not the only matters which can assist parties like the petitioners. Something more is required to be brought and placed before a Court of law. The petitioners have not discharged that burden.

Mr. Aney is, therefore, wholly justified in placing reliance upon the judgment of the Hon''ble Supreme Court in the case of A. Suresh & Ors. v. State of Tamil Nadu & Anr. (1997) 1 SCC 319. The Hon''ble Supreme Court held that Tamil Nadu Entertainment Tax Act was enacted to impose the tax on entertainments. By Act 37 of 1994, it was amended to bring within its purview what is called cable television. The writ petitions were filed in Madras High Court challenging the validity of the Amendment Act, inter alia, on the ground that they are violative of the freedom of speech and expression guaranteed to the citizens of India by Article 19(1)(a) of the Constitution of India. The State defended this challenge by pointing out that cable television is akin to cinema entertainment, though provided in a different manner taking advantage of technological advancements, but it is on par with cinema and, therefore, entertainment tax could be levied on it. The argument was that only films were not shown on television or cable television, but even programmes were broad-casted by Doordarshan, BBC and CNN etc. They are educative or informative in character. After examining the contentions, the Hon''ble Supreme Court concluded that there is no reason why the business part of it cannot be taxed. If tax can be levied on entertainment provided by cinemas, if tax can be levied on press, it is un-understandable why cable television network cannot be taxed. It is in that context that the Hon''ble Supreme Court relied upon the judgment in Indian Express Newspapers (Bombay) Pvt. Ltd. (supra), the latter case and paras therefrom which we have reproduced above and proceeded to hold thus :

"13. Dealing with the power of the State to levy taxes, the Court observed: "Taxation is the legal capacity of sovereignty or one of its governmental agents to exact or impose a charge upon person or their property for the support of the government and for the payment for any other public purposes which it may constitutionally carry out."

In this view of the matter, the only question is whether the level of taxation is not within reasonable limits and whether it''s incidence is such as to disable the appellants from exercising their free speech right. Though the appellants have alleged that the tax imposed is too heavy and is intended to drive them out of their business with a view to help the cinema theatres, no material has been placed before us to substantiate the said averment. The respondent''s case is that the cable television has taken the place of cinema. It has replaced the cinema to certain degree. The cable television is performing the very same function as is performed by the cinema. Cinema also provides entertainment. It also provides educational programmes. Indeed according to the learned counsel for the State, major chunk of the programmes shown on cable television are pure and simple entertainment and that they are mainly engaged in showing films which are broadcast either by T.V. net-works or relayed by the appellants with the help of a V.V.R. Counsel complained that some of the programmes shown by the appellants are having a deleterious effect upon the young and impressionable. With a view to promote their business counsel submitted, the appellants are showing programmes designed to cater to base instincts and vulgar tastes. It is accordingly submitted that the rate of entertainment tax levied upon cable television at the same level and on the same par as the entertainment tax levied upon cinema theatres is neither unreasonable nor excessive. It is submitted that the levy of entertainment tax at 40 per cent of the collections is no higher than the rate of tax levied upon the cinema. It is also brought to our notice that the rate of taxation has since been down 20 per cent. If the levy of entertainment tax at the rate of 40 per cent or thereabouts on the cinema theatres is not impermissible, it is submitted, the levy of entertainment tax at the same or lesser rate on cable television cannot also be held to be bad."

We do not think in the teeth of such authoritative pronouncement we can hold that every tax or duty necessarily infringes the constitutional guarantee.

Finally, Mr. Dwarkadas''s reliance placed on the judgment in the case of Hindustan Times & Ors. v. State of Uttar Pradesh & Anr. (2013) 1 SCC 591 is equally misplaced.

There, the Hon''ble Supreme Court found that the Pension and Social Security Scheme For Full-time Journalists propounded by the State of Uttar Pradesh led to the impugned communication and order. That directed that for implementation of the scheme the Government has sanctioned deduction of 5% from bills for publication of Government advertisements in all newspapers/journals whose circulation was over twenty five thousand. The Executive instructions contained in two letters of September and October 1991 proceeded to state that Government order was deemed to be amended. In other words, by virtue of these orders it was directed that at the time of payment of bills for publication of Government advertisements in all news-papers having circulation of more than twenty five thousand copies, 5% of the amount thereof, forming part of a fund for the purpose of granting pension to the working journalists, would be deducted. The 5% amount from the advertisement bill of the petitioners was deducted and the petitioners were further informed that in the event they are not agreeable to the deduction as per the Government order, they will not be allowed to insert any Government advertisement. The prohibition was not to use the petitioners newspaper for Government advertisement. It is in this factual scenario that the Hon''ble Supreme Court was examining the challenge raised to this Government Order, inter alia, on the ground that the same violates the freedom of speech guaranteed by Article 19(1)(a). The paragraphs of this judgment relied upon by Mr. Dwarkadas should be read in the context of this challenge. Once again the role of advertisements in the matter of revenue of a newspapers was in issue. After following the judgment in the case of Tata Press Ltd. v. MTNL (1995) 5 SCC 139, Benett Coleman & Co. v. Union of India (1972) 2 SCC 788, it was held that for the purpose of meeting costs of newsprint and also for meeting other financial liabilities which would include the liability to pay wages, allowances and gratuity etc to the working journalists as also liability to pay a reasonable profit to the shareholders vis-a-vis making the newspapers available to the readers at a price at which they can afford to purchase it, the petitioners have no other option but to collect more funds by publishing commercial and other advertisements in the newspaper. The Government cannot adopt an attitude "take it or leave it". We cannot forget the background and essential facts brought before the Hon''ble Supreme Court in which these observations have been made in paragraphs 38 and 39. True it is that advertisements and particularly Government advertisements particularly relating to tenders, notices etc. are inserted in newspapers to a large extent. Sometimes pages and pages are devoted to these advertisements or classified advertisements etc. However, in the present case, we cannot forget, as Mr. Aney highlighted, that if Government advertisements are the subject matter of the instrument, the Government is exempt from payment of stamp duty. Therefore, we cannot assume that the burden to pay duty would necessarily fall in all such cases. It can still be highlighted by the petitioners that by passage of time, their advertisements, including from Government have decreased or are reduced and the burden of paying this levy has directly impacted them. Therefore, everything is relatable and attributable to this tax or duty and hence their freedom and essentially the citizens'' freedom is in jeopardy. We are sure that unmindful of the rejection of the present challenge such a case can be examined on its own merits and in accordance with law, irrespective of our pronouncement. Today, in the absence of any data and material as was brought in each of the above cases before the Hon''ble Supreme Court, we cannot grant any relief to the petitioners before us.

We clarify that in each individual case, it would be open for the petitioners to point out that the levy is not attracted for the ingredients of Article 5(h)(A) are not satisfied. The element of profit or business is absent. They can always point out some social or welfare schemes of the Government being advertised or Government tenders or advertisements being inserted as part and parcel of their duty to the public or on account of other conditions being imposed on them. They can always urge that in such cases of advertisements in mass media, the levy cannot be imposed. All such contentions can be raised as and when demands are made on the members of the petitioners. While contesting the orders of assessment or other measures and while challenging them as well they can point out that the levy is unconstitutional to the extent it violates the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. We also clarify that the press or others concerned can urge that despite the broad and wide meanings as generally understood in common parlance, particular advertisements though subject matter of agreements or instruments, are not published or circulated in mass media. They can point out in an individual case that the medium for advertisement does not come within the popular meaning of the term or word "mass media".

Therefore, in the facts and circumstances of each case, constitutional, legal challenge is still open.

We clarify that the present challenge is rejected because the petitioners could not satisfy the tests emerging from the Supreme Court decisions and highlighted above. A general and sweeping challenge based on the present pleading could never have been accepted by us.

When such is our conclusion, then, the reliance placed on Smt. Maneka Gandhi v. Union of India AIR 1978 SC 597 is misplaced. In Maneka Gandhi the passport and the requirement of it for the purposes of travel abroad by a news reporter or journalist for participating in an international conference was the issue. It is in that backdrop that the Hon''ble Supreme Court highlighted that the freedom of speech and expression has no territorial limits. It is in that backdrop that we cannot appreciate the reliance placed by Mr. Dwarkadas on paragraphs 68A and 69 of this judgment. To repeat, the Court reiterated the test of direct operation or consequence and effect of the State action on the fundamental right. The Court highlighted that the word inevitable is not used in the judgment in the case of Rustom Cavasjee Cooper & Ors. v. Union of India AIR 1970 SC 564. It is in this background we do not feel it necessary to highlight the observations in paragraphs 41, 42 and 45 of this judgment recorded by Hon''ble Mr. Justice Y.V. Chandrachud, J. (as His Lordship then was).

Before parting, it is time that parties like the petitioners realise that the State Government stepped in only because of the immense market potential and revenue generated on account of advertisements in mass media. The media, meant for masses, is now a power by itself and controlled by Industrial houses. They own it and are exploiting it for commercial gains and profits. The wide range of products sold in the market, on-line and on-shelf require vigorous and large scale advertising. That is reducing and adversely affecting the informative, educative and such other content in mass media. If the shift is towards business, the profits and gains therefrom are in the forefront, then, can those in charge of and operating the mass media complain ? That is a question they must ask and answer themselves. We need not say anything more.

As a result of the above detailed discussion, Rule is discharged. The Writ Petition fails. There shall be no order as to costs.

In view of the dismissal of the Writ Petition, nothing survives in the Notice of Motion and it is accordingly disposed of.