All India Small & Medium ... vs Press Council Of India & Anr
2000 Latest Caselaw 801 Del

ORDER

Manmohan Sarin, J.

1. This writ petition raise a short but interesting question regarding the number of terms for which a member can be denominated to the Press Council. The answer to this questions turns on the interpretation of SubSection (7) of Section 6 of the Press Council Act, 1978 (hereinafter referred to as the 'Act'). SubSection 7 of Section 6 of the Act reads as follows:

   "A retiring member shall be eligible for renomination for not    more than one term."   

   Petitioners contend that the provision bars more than two successive terms, while the stand of the Council is that the total number of terms available to a member are two terms of three years each. 
 

2.  The facts culminating in the writ petition are as follows: 
 

   Petitioner No.1 before the Court is the All India Small and Medium Newspapers Federation and Shri Harbhajan Singh, who is the Editor of the Indian Observer, is petitioner No.2. 
 

Petitioner No.1 being an Association of persons within subsection (b) of Clause (3) of Section 5 of the Act. had sponsored the name of petitioner No.2 for nomination as a member of the Council. in accordance with Section iv) of the Act. Petitioner No.2 had already enjoyed two terms of three years each as a member, i.e. for the years 1982 85 and 1985-88. The Press Council of India took the stand that petitioner No.2 was not eligible for being nominated as a member for the third term by virtue of bar in subsection (7) of Section 6 of the Act. The nomination of petitioner No.2 was rejected and in his place, the nomination of his son, whose name had been sponsored as a cover candidate, was accepted. These nominations were for the Seventh Press Council, being re constituted with effect from 25th of January, 1998.

3. Aggrieved by the aforesaid decision. the petitioners had filed this writ petition, seeking a writ of certiorari as well as a declaration that a retired member who has already served two terms is not disqualified for nomination/renomination under the provisions of Section 6(7) of the Press Council Act. Further, a writ of mandamus and direction was sought against the Council to accept the consider the nomination of petitioner No.2.

4. Notice to show cause was issued in the writ petition. Union of India was imp leaded as respondent No.2. Vide an order dated 9.12.1997, on an application seeking interim directions (CM.10175/97), it was ordered that the decision taken by the Press Council, would be subject to the decision in the writ petition.

5. Before dealing with the rival submissions of the parties, it would be appropriate to notice some of the salient provisions of the Act. Chapter II, contains Section 4 to 12, dealing with the establishment of the Press Council. The object of the Act, as given, is "an Act to establish a Press Council for the purpose of preserving the freedom of the Press and of maintaining and improving the standards of newspapers and news agencies in India". Section 4 of the Act provides for Constitution of the Council by notification by the Central Government. The composition of the Press Council is a Chairman and 28 other members. Clause (a) of SubSection (3) of Section 5 provides for 13 members being nominated from amongst the working journalists and editors of newspapers. Clause (b) of SubSection (3) of Section 5 provides for six members being nominated out of those engaged in the business of management of newspapers, with two representatives each from the category of big newspapers, medium newspapers and small newspapers. Section 6 of the Act is reproduced in extenso:

   6.(1) Save as otherwise provided in this section, the Chairman    and other members shall hold office for a period of three years: 
 

   Provided that the Chairman shall continue to hold such office    until the Council is reconstituted in accordance with the provision of Section 5 for a period of six months whichever is earlier. 
 

   (2) Where a person nominated as a member under clause (a), clause    (b) or clause (c) of subsection (3) of section 5 is censured    under the provision of subsection (1) of Section 14, he shall    cease to be a member of the Council. 
 

   (3) The term of office of a member nominated under clause (e) of    subsection (3) of Section 5 shall come to an end as soon as he    ceases to be a member of the House from which he was nominated. 
 

   (4) A member shall be deemed to have vacated his seat if he is    absent without excuse, sufficient in the opinion of the Council    from three consecutive meetings of the Council. 
 

   (5) The Chairman may resign his office by giving notice in writing to the Central Government and any other member may resign his    office by giving notice in writing to the Chairman and upon such    resignation being accepted by the Central Government, or as the    case may be, the Chairman, or the member shall be deemed to have    vacated his office. 
 

   (6) Any vacancy arising under subsection (2), subsection (3),    subsection (4) or subsection (5) or otherwise shall be filled,    as soon as may be, by nomination in the same manner in which the    member vacating office was nominated and the member so nominated    shall hold office for the remaining period in which the member in    whose place he is nominated would have held office. 
 

   (7) A retiring member shall be eligible for renomination for not    more than one term.   

   In the instant case, as noted earlier, we are concerned with the interpretation of Subsection (7) of Section 6 of the Act. 
 

6. The contention of the petitioners before the Court is that petitioner No.2, who has enjoyed two terms as a member of the Council from 1982-85 and 1985-88, is eligible for renomination for the Seventh Council, commencing from 1998. The plea being that petitioner No.2 is not a retiring member' but a member who retired in 1988. The bar in subsection (7) of Section 6 is only to ensure that a member does not have more than two consecutive terms. Learned counsel for the petitioner urged that the provision only restricts the renomination of a "retiring member" for a third successive term.

7. Learned counsel for the petitioners contended that Subsection (7) of Section 6 cannot be interpreted as prohibiting or containing a bar on a member not being nominated to the Council for more than two terms, in all. Counsel submits that such a prohibition in any legislation has to be in clear terms and it cannot be introduced or read into the provisions by referring to an implied intention of the Legislature. Such an intention must be clearly expressed in the Statute. Examples of some of the statutes containing a prohibition in clear terms have been cited, which would be noticed hereinafter.

8. Learned counsel for respondent No.1 Mr. P.H. Parekh, argued that the object of the Statute is to preserve the freedom of the Press and of maintaining and improving standards of newspapers and news agencies. The provisions relating to the constitution of the Council clearly show that they are intended to get representation from different walks of life and discipline, apart from the media and the press. The purpose for which the Council is constituted and its activities are devoid of any commercial element and the intention is to provide selfless service for preserving the freedom of the Press. It is, therefore, necessary that no vested interests are allowed to be perpetuated in the Council. It is with this intention that a prohibition has been introduced in Subsection (7) of Section 6 to provide that a retiring member shall be eligible for renomination for not more than one term. The whole purpose or intention of the legislature was to limit the total tenure for which a person can be nominated on the Executive to two terms of three years each. Otherwise, the object can be defeated by the members seeking renomination in the event of the existing member retiring or a vacancy being created after a little gap. It was submitted that the intention to restrict the total tenure of a member is also borne out by Subsection (6) of Section 6, which provides for filling up vacancy arising during the term. As per this provision, the person nominated would hold office for the remaining period in which the member in whose place he is nominated would have held office. Learned counsel argued that allowing the prayer of petitioner No.2 would defeat the very purpose of this legislation and allow vested interests being created. The Union of India has also endorsed the stand of the Press Council, stating that a person was not eligible to be nominated for the third term.

9. Learned counsel for respondent No.1 further submitted that the Press Council has through out acted on this provision as prohibiting a third term to any person. There has been no instance where a person has been allowed to have more than two terms. As regards the two instances cited by the petitioners. It was sought to be explained that in the first case the two terms were prior to the Act of 1978 and as regards the third term in respect of Mr. Chandukar, it is stated that before the Press Council could take up the matter of his nomination with the Central Government, the member had expired within one week of his nomination. In any case, in my view, these factors cannot be determinative of the matter or advance the respondents' case.

10. Having considered the rival submissions, I find merit in the case of the petitioner. The provision of Subsection (7) of Section 6 of the Act cannot be interpreted as imposing an absolute prohibition or a ban on a person from seeking renomination for more than two terms. The expression used in the Section is clear and unambiguous. It is a 'retiring' member, i.e. a person who is enjoying the tenure of a term and, therefore, he is not to be renominated for more than one term. This provision, from its plain words, provides for a prohibition for more than two consecutive terms. It is settled principle of interpretation that when the language of the Statute is clear and unequivocal, it has to be given its plain meaning and effect. If, at all, the intention of the Statute was to provide for an absolute prohibition or ban on a person seeking to get renominated to the Council for more than two terms, then such a prohibition could have been clearly stated. Examples of this are not hard to find. Reference is invited to Schedule to the Delhi University Act, called the Schedule to the Statutes of the University. Section 5(1) provides for composition of the Executive Council as comprising the ViceChancellor, proVice Chancellor, Dean of Colleges, Director, South Campus; Treasurer; Proctor and Three Deans and others, as specified. Subsection (2) provides in clear terms as follows:

   "No person shall be a member under item (ix) or (x) of Clause (1)    for more than two terms." 
 

   The bar, as would be seen, is in clear and categorical terms. 
  

11. The 22nd amendment of the US Constitution is again a good example of how, when the Legislature intends a complete bar, it states so in clear and categorical terms. Section 1 of the amendment reads as under:      "No person shall be elected to the office of the President more    than twice and no person who has held the office of President, or    acted as President, for more than two years of a term to which    some other person was elected President shall be elected to the    office of President more than once. But this Article shall not    apply to any person holding the office of President when this    Article was proposed by the Congress, and shall not prevent any    person who may be holding the office of President or acting as    President, during the terms within which this Article becomes    operative from holding the office of President or acting as    President during the remainder of such term." 
 

12. A Division Bench of this Court in Suresh Chand Jain and Others Vs. Lt. Governor of Delhi & Others, in Civil Writ Petition 2010/91. decided on14.11.1991, considered the provisions of Section 31(5) of the Delhi Cooperative Societies Act. The relevant extract from the said Section reads as under:    

   "Notwithstanding anything contained in this Act, a person shall    be disqualified for election as, or for being the president,    vice president,  chairman, vice chairman, managing  director,    secretary, joint secretary or treasurer of a committee,_ 
 

   (a) if he has held any such office on that committee during two    consecutive terms, whether full or part; 
 

   (b) if he holds any such office on a committee of another cooperative society of the same type; 
 

   (c) if he holds any such office on the committees of three or    more cooperative societies of a different type or different    types: 
 

   Provided that nothing contained in this subsection shall be    deemed to disqualify any such person for election as, or for    being, a delegate of a society or a member of another committee."   

   The Court in the said case was dealing with a person who had earlier held the post of Secretary, then as Vice Chairman for two consecutive years and for a short period as a Chairman. The question was whether the incumbent attracted the disqualification. The Division Bench held that disqualification was not attracted. It observed that if it was intended to make the bar applicable even if any of the posts were held for short time and not consecutively, then the words would have been "any of such offices" and not any such offices. The Division Bench, while holding that for the bar to apply, the same post must be held consecutively, observed as under :      "In normal circumstances, every member has a right to contest any    post for any number of terms. This subsection puts a bar on that    right. We do not think we should blockade that right to such a    limit so as to bar a member from contesting the post which he    did not hold consecutively for two terms."
  

13. From the foregoing discussion, it would be seen that subsection (7) of Section 6 of the Act cannot be given an interpretation as propounded by the respondents. Reading the Section as containing a bar, prohibiting a member from being nominated as a member of the Council if he has been a member twice, would amount to adding to the words of the Statute. It would amount to reading 'retiring member' as a "retired member" Besides, as discussed above, a prohibition or bar must be clearly' stated, in the absence of which the same cannot be introduced on the basis of the assumed intention of fulfillling the object of the Statute. Reference is invited to the observations of Lord Watson in Salmon Vs. Salomon & Co., (1987) AC 22.38, Which read as follows:      "Intention of the legislature is a common but very slippery    phrase, which, popularly understood may signify anything from    intention embodied in positive enactment to speculative opinion    as to what the legislature probably would have meant, although    there had been an omission to enact it. In a Court of Law or    Equity, what the Legislature intended to be done or not to be    done can only be legitimately ascertained from that which it has    chosen to enact, either in express words or by a reasonable and    necessary implication."
  

14. Learned counsel for the respondents relied on the judgment of the Apex Court in N. Suresh Nathan Vs. Union of India to plead that the respondents were adhering to a long standing practice in this regard. The legal proposition on the subject of adherence to a long standing practice is well settled, i.e. if the practice is based on one of the possible constructions of the rule, then upsetting it would not be appropriate. In the instant case, I have reached the conclusion that the interpretation given to Section 6(7) of the Press Council Act was untenable and unwarranted. Hence, the plea of it being in accordance with the long standing practice, based on an erroneous and unwarranted interpretation cannot be sustained.

15. Accordingly, the writ petition is allowed. It is held that Section 6(7) of the Act bars only the renomination of retiring member for more than one term and does not contain an absolute bar for any member to be nominated for more than two terms.

16. As the decision of the Press Council in not entertaining the application of the petitioner was made subject to the outcome of the writ petition, petitioner No. 2 shall be entitled to be considered for nomination as a member of the Press Council for the remaining term of the Council by the Central Government. Ordered accordingly.