Chhattisgarh High Court: The Court recently addressed a petition by ‘Hari Bhoomi’ newspaper impugning legality, validity and correctness of order by Press Council of India and by the Directorate of Advertising and Visual Publicity (DAVP).

The impugned orders were passed because the petitioner newspaper published a news item during the elections in favour of a candidate and was presumed to be covered under S. 14(1) of the Press Council Act. The Election Commission of India taking note of it, forwarded it to the PCI terming the published news as suspected paid news case. PCI issued show cause notice to the petitioner and getting no response, the matter was referred to the enquiry committee of PCI constituted under Section 8(1) of the PCI Act.

Further, DAVP suspended the petitioner from DAVP panel for a period of two months from September to November 2017 in exercise of power conferred under Clause 25(d) of the Print Media Advertisement Policy, 2016, as procedurally ultra vires and contrary to law. Counsel for the petitioner contended before the Court that none of the conditions laid down in S. 14 of the PCI Act have been fulfilled by the PCI while passing the impugned order and for doing so, he said that PCI must have recorded a finding that the Council has reason to believe that the newspaper has offended against the standards of journalistic ethics or public taste or that an editor or a working journalist has committed any professional misconduct. He further submitted that without recording any of the findings, the PCI concluded its order only on the finding of publication of alleged paid news by the petitioner.

Furthermore, the petitioner was not given a reasonable opportunity of being heard by the council which the counsel stated as arbitrary and contrary to S. 14 of the Act and DAVP acted upon an order which was not executable.

On hearing the parties on both sides, the Court highlighted what the essence of PCI Act is. It observed that it ahs been enacted to establish a Press Council for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspaper and news agencies in India. It further stated that its functions are also quasi judicial of examining complaints in respect of news agency. The court further took note of S. 14 of the Act under which the impugned order was passed against the petitioner and observed that expression ‘reason to believe’ means that even though formation of opinion may be subjective but it must be based on material on the record and it cannot be arbitrary, capricious or whimsical. Further, it held that it is not synonymous to subjective satisfaction of the officer. The provision also mandates that the party against whom the order is being passed must be given an opportunity to be heard. Sanjay K. Agrawal, J. said that once the condition precedent for exercising this power is not fulfilled, the order becomes vulnerable.

The court noted that in Ajay Goswami v. Union of India,  (2007) 1 SCC 143, the PCI submitted before the Apex Court that the Press Council has no punitive powers and the DG, DAVP can impose penalty only if the newspapers found indulged in unethical practices or anti-national activities which was absent in the instant case and therefore, held that the order passed by the Press Council of India inflicting penalty of censure upon daily newspaper Hari Bhoomi and the consequential order passed by the DAVP are not only procedurally ultra vires, but substantially contrary to the provisions contained in S.14 (1) of the PC Act read with Regulations 5 and 9 of the Regulations, 2006. It further held the order of DAVP outside its jurisdiction and quashed both the impugned orders.

As the time of censure had already passed during which period the petitioner company had been deprived of getting advertisements, the Court decided to provide the petitioner a consequential relief. It instructed that the petitioner is free to make representation before DAVP for granting it additional/compensatory advertisement for the period for which he has been deprived of and similarly situated newspapers were granted on account of the order passed by the DAVP and in turn, the DAVP will consider and dispose of the said representation within two weeks of the release of the order of court. [Haribhoomi Communications Pvt. Ltd. v. Press Council of India, 2017 SCC OnLine Chh 1493, decided on 7.12.2017]

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