NEW DELHI: The country’s top lawyers have expressed concern over the continued disruption in the distribution of newspapers even when they have been categorized an essential service and said that obstructing delivery not only impedes the availability of reliable information at a time of unprecedented public heath emergency but also constitutes an offence under the Essential Services Maintenance Act (ESMA).
Renowned lawyer Harish Salve, who has served as solicitor general and who represented India at International Court of Justice to save Kulbhushan Yadav from imminent execution in Pakistan, expressed serious concern over difficulties and impediments being faced by newspapers in distribution.
“In this world of social media, where gossip and propaganda are elevated to the status of the gospel, the printed word on a responsible newspaper is clearly an essential service. In these difficult times, news in articles by responsible journalists, which informs without creating a sense of panic or despair, is essential for survival”, Salve told TOI.
“Newspapers are clearly an essential commodity particularly in these warlike conditions where we are fighting an invisible enemy of whom we know so little, and where information and intelligence is the only weapon available to mankind,” he said in what could be seen as sagely warning to those trying to disrupt delivery of newspapers to homes during the lockdown.
Solicitor general Tushar Mehta, said, “There is no restriction in distribution of newspapers. It is included in the essential services. So, no one should hinder distribution of newspapers.”
Senior advocate Maninder Singh, who has been additional solicitor general, said circulation of newspaper is an inseparable and essential part of dissemination of information and is protected by both Article 19(1)(a) and 19(1)(g) of the Constitution guaranteeing right to free speech and profession, respectively. “The only method to achieve dissemination of ideas and information is by circulation of newspaper. One does not publish a newspaper to keep it in godowns,” he said.
A M Singhvi, one of India’s celebrated constitutional experts , said the fundamental right of a resident to receive a hard copy of the print newspaper, the pleasure of flipping through it with a hot cup of tea, the advertising revenue behind these pages which rightfully funds not only free speech but the latter’s foot soldiers, namely print journalists, weighs heavily on one scale.”
While acknowledging the dilemma faced by RWAs in instituting “reasonable restrictions to entry, arising from understandable apprehensions during these difficult times,” Singhvi said, “On balance, with proper hygiene and safeguards by printers and suppliers, I would lean clearly and heavily in favour of facilitating distribution of newspapers.”
Rakesh Dwivedi, another top constitutional lawyer, said “I need newspapers more than biscuits in the morning. People of my age feel better with a hard copy of the newspaper. Since print and electronic media has been included in essential services, the newspapers should be allowed to be distributed freely.”
While declaring 21-day lockdown, the Union government included print and electronic media, including newspapers, among essential services that ought not to be hindered. The decision was meant to ensure uninterrupted distribution of newspapers among the general public by extending protection under ESMA, 1981, under which obstruction of the provision of essential services is treated as a punishable offence.
Once an item is covered under ESMA, as is the case for newspapers during the lockdown period, any hindrance to its distribution would fall foul of Sections 5 and 6 of ESMA, 1981. These two sections make it abundantly clear that those who disrupt distribution of an essential service could be arrested without warrant and face imprisonment up to one year.
What Salve and Singh said in the context of newspaper circulation has been the consistent stand of the Supreme Court in its rulings since 1950. In ‘Ramesh Thapar vs state of Madras’ [1950 SCR 594], which pertained to ban on entry and circulation of a journal in the state of Madras, the SC had said, “There can be no doubt that freedom of speech and expression included freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation, the publication would be of little value.”
Again in 1958 in the Express Newspapers case, the SC had ruled, “Freedom of speech and expression includes freedom of propagation of ideas, which freedom is ensured by the freedom of circulation…The liberty of the press is an essential part of right to freedom of speech and expressio