'Constitution Forecloses Public Authority From Assuming A Guardianship of Public Mind Through Regulating Press' : Tripura HC [Read Judgment]

In its judgment running over a hundred pages, the bench of Justice S. Talapatra observed that the District Magistrate, based on whose recommendation the Registrar of Newspapers for India (RNI) cancelled the certificate of registration of the newspaper, had "overstepped" his jurisdiction of inquiry.

Accordingly, the Court has asked the concerned authorities to restore the certificate of registration issued in favour of Daily Desher Katha.

"The Indian Constitution also forecloses public authority from assuming a guardianship of the public mind through regulating the press", the Court observed in the order.

The order has come in a writ petition filed by the local daily, challenging the cancellation of registration certificate issued to it subsequent to intimation regarding change in ownership.

The Court observed that the authority overstepped the authority conferred by law and infringed the fundamental right to freedom of speech.

"The propensity of overstepping the authority is dangerous for the rule of law or the constitutional democracy. Even a smaller contravention cannot be liberally dealt with. The impugned action of the District Magistrate is an example how an authority wields power and jurisdiction beyond the power which has been delegated to him by the statute", the Court observed.

" The Indian Constitution also forecloses public authority from assuming a guardianship of the public mind through regulating the press".

The propensity of overstepping the authority is dangerous for the rule of law or the constitutional democracy. Even a smaller contravention cannot be liberally dealt with. The impugned action of the District Magistrate is an example how an authority wields power and jurisdiction beyond the power which has been delegated to him by the statute."

"...to protect the freedom of press from any machination, wholly unacknowledged by the statute or by delegation of power, is of utmost importance in order to protect the constitutional democracy. Thus, the way the District Magistrate has conducted the proceeding or finally passed the impugned order dated 01.10.2018 is grossly illegal and hence it has been interfered with", the Court said.

Background

The daily, previously owned by the CPI(M) Tripura state committee, changed its ownership declaration as a newspaper published from Daily Desher Katha Society. Accordingly, a fresh declaration intimating about change in ownership was submitted before the concerned authorities in the year 2012, in terms of Section 5(2E) of the Press and Registration of Books Act, 1867. The newspaper had also filed a declaration regarding change in name of the editor as Samir Paul, in place of Gautam Das, in March 2015.

The declaration was suddenly cancelled vide an order dated October 1, 2018, apparently based on a complaint filed by one Shyamal Debnath to the DM, West Tripura seeking stoppage of the publication of the said newspaper, alleging mismatch between the information of editor, printer and publisher provided in the newspapers' declaration and data maintained with the RNI.

Findings

The Court observed that the Press Registrar had failed to effect the changes, so intimated by the newspaper in its ownership, in the Office records, "for unexplained reason".

It noted that the declaration dated 18.07.2012 as submitted to the office of the District Magistrate was not given effect to and it is only in the reply filed before the Court, it has been stated that "such changes were not effected on the ground that no document of change of ownership from the CPI (M) State Committee was submitted".

The DM submitted that the then publisher, Gautam Das who made the declaration and claimed to be publisher under the new owner namely Daily Desher Katha Trust did not only fail to produce any authenticity of the formation of the society and that of transfer of ownership from CPI(M) party but also failed to produce any authority in writing authorizing him to make such declaration as required under Section 5(2D) of the PRB Act.

Unconvinced by this submission, the bench clarified that "declaration and the declaration alone is sufficient to suffice the purpose of Section 3 of the PRB Act." It held that the statute does not require submission of any supportive document from the person filing a declaration of ownership.

The Court observed that a declaration—

"cannot be questioned by the District Magistrate without any dispute raised by any person claiming ownership or without asking for the further evidence in this regard, if in any case the District Magistrate is not satisfied during the authentication of the declaration.

… It is the printer or publisher or printer and publisher who shall make such declaration taking the responsibility of the publication. Unless the owner challenges the status of the declarant as the publisher or the printer no objection can be raised when such declaration is made under authority of the owner."

It added,

"District Magistrate or the other Magistrate who are conferred with the power to authenticate does not have any authority to inquire the veracity of the title of the newspaper. The publisher or the printer having due authorization, when makes the declaration in respect of the owner, that has to be accepted by the District Magistrate as the purpose and object of such declaration was to make known who the proprietor, printer or editor was in regard to a newspaper or other publication so that the responsibility for an improper publication might be fastened on the proper person. Any person who was a major could declare himself a publisher and such declaration does not depend on a grant of permission by any authority."

The Court noted with surprise that even though the declaration was filed for change of ownership in the proper form and even though those were not rejected by any authority having competence, without any notice to the Petitioner, his declaration was cancelled "abruptly".

It observed that there was no order or any other communication on record to show that the Petitioners were informed about the defects in their declaration.

Holding the same to be a glaring example of denial of natural justice the bench clarified,

"In order to discharge the responsibility as saddled by Section 5(2D), Section 5(2E), Section 5(3) and Section 5(1), if the declaration is filed and it is not rejected by clear order for fatal flaws, it has to be presumed that the obligation has been discharged fully by the person who is obliged to make such declaration. For non-issuance of the revised certificate of registration, the printer, publisher or the editor cannot be made responsible or the publication of the newspaper cannot be interfered with in any manner."

It proceeded to observe Section 8B of the PRB Act which clearly provides that if the Magistrate empowered to authenticate a declaration is of the opinion that any declaration made in respect of a newspaper should be cancelled, he may, "after giving the person concerned an opportunity of showing cause against the action propose to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard."

In this backdrop the Court held that the "satisfaction" has to be made within the four corners as delineated under Section 8B. However in the present case, it noted, the District Magistrate had "arbitrarily" acted as a reviewing authority and cancelled the declaration, without any reasonable explanation.

"His observation that the newspaper has been violating Section 5(1) and Section 5(2E) is not supported by any reason inasmuch as from his own admission it is apparent that the declaration dated 31.03.2015 was thoroughly scrutinized, inquired into and after authentication with all reports from the various authorities, the said declaration was sent to the Press Registrar. There is no statement of fact or to demonstrate reason where lied the defect in the said authentication process," the Court said.

The Court was also "shocked" to note that the District Magistrate had acted as the superior authority having wielded with power of superintendence over the Sub-Divisional Magistrate. It clarified that the District Magistrate and the Sub-Divisional Magistrate hold "concurrent powers" of authentication under the PRB Act.

"The 'concurrent power' means the co-terminus power conferred on two different authorities for the same purpose. Option to choose the authority lies with the person who would like to invoke their power for purpose of authentication. The District Magistrate had gone to such an extent that he had called the Sub-Divisional Magistrate as the witness in the proceeding to verify the process that he had followed. Such action is high-handed. Such action is not approved by Section 10B of the PRB Act," the Court said.

It added,

"It is clearly held that the District Magistrate does not have any power of the superior court, such as, the appellate court, nor does he wield the power of superintendence over any action taken by the Sub-Divisional Magistrate in respect of authentication. The District Magistrate has messed up his administrative jurisdiction over the Sub-Divisional Magistrate with the authority created under the PRB Act. As stated, both the District Magistrate and Sub-Divisional Magistrate, so far it relates to the authentication of the declaration is concerned, wield same and similar powers."

Case Details:

Case Title: Daily Desher Katha Trust & Anr. v. State of Tripura & Ors.

Case No.: WP(C) No. 959/2018

Quorum: Justice S. Talapatra

Appearance: Senior Advocate BR Bhattacharjee with Advocates TD Majumder, J Majumder and S. Bhattacharjee (for Petitioners); Advocate General AK Bhowmik, Assistant Solicitor General H. Deb, Govt Advocate D Bhattacharjee and Advocates PK Dhar and RG Chakraborty (for Respondents)

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