No XVI of 1950
Appli cation under article 32 of the Constitution for a writ of prohibition and certiorari
The facts are set out in the judgment
CRPattabhi Raman for the petitioner
K Rajah Ayyar Advocate General of MadraS Ganapathi Ayyar with him for the opposite party
May 26
The Judgment of Kania CJ Mehr Chand Mahajan Mukherjea and Das JJ
was delivered by Patanjali Sastri J Fazl Ali J delivered a separate judgment
PATANJALI SASTRI J
The petitioner is the printer publisher and editor of a recently started weekly journal in English called Cross Roads printed and published in Bombay
The Government of Madras the respondents herein in exer cise of their powers under section 9 1 A of the Madras Maintenance of Public Order Act 1949 hereinafter referred to as the impugned Act purported to issue an order No MS
1333 dated 1st March 1950 whereby they imposed a ban upon the entry and circulation of the journal in that State
The order was published in the Fort St George Gazette and the notification ran as follows  In exercise of the powers conferred by section 9 I A of the Madras Maintenance of Public Order Act 1949 Madras Act XXIII of 1949 His Excellency the Governor of Madras being satisfied that for the purpose of securing the public safety and the maintenance of public order it is necessary so to do hereby prohibits with effect on and from the date of publication of this order in the Fort St George Gazette the entry into or the circulation sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay
 The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan vs The State of Delhi p 605 infra
596 speech and expression conferred on him by article 19 1 a of the Constitution and he challenges the validity of section 9 1 A of the impugned Act as being void under article 13 1 of the Constitution by reason of its being inconsistent with his fundamental right aforesaid
The Advocate General of Madras appearing on be half of the respondents raised a preliminary objection not indeed to the jurisdiction of this Court to entertain the application under article 32 but to the petitioner resort ing to this Court directly for such relief in the first instance
He contended that as a matter of orderly proce dure the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent jurisdiction to deal with the matter
He cited criminal revision petitions under section 435 of the Crimi nal Procedure Code applications for bail and applications for transfer under section 24 of the Civil Procedure Code as instances where concurrent jurisdiction having been given in certain matters to the High Court and the Court of a lower grade a rule of practice has been established that a party should proceed first to the latter Court for relief before resorting to the High Court
He referred to Emperor vs Bisheswar Prasad Sinha 1 where such a rule of practice was enforced in a criminal revision case and called our attention also to certain American decisions Urquhart vs Brown 2 and Hooney vs Kolohan 3 as showing that the Supreme Court of the United States ordinarily required that whatever judicial remedies remained open to the appli cant in Federal and State Courts should be exhausted before the remedy in the Supreme Court be it habeas corpus or certiorari would be allowed
We are of opinion that neither the instances mentioned by the learned Advocate General nor the American decisions referred to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution
That article does not merely confer power on this Court as article 226 does on the 1 ILR 56 All
2  3  597 High Courts to issue certain writs for the enforcement of the rights conferred by Part III or for any other purpose as part of its general jurisdiction
In that case it would have been more appropriately placed among articles 131 to 139 which define that jurisdiction
Article 32 provides a guaranteed remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part 1II
This Court is thus constituted the protector and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringements of such rights
No similar provision is to be found in the Constitution of the United States and we do not consider that the American decisions are in point
Turning now to the merits there can be no doubt that freedom of speech and expression includes freedom of propa gation 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  Ex parte Jackson1
See also LoveIl vs City of Griffins
It is therefore perfectly clear that the order of the Gov ernment of Madras would be a violation of the petitioner s fundamental right under article 19 1 a unless section 9 1 A of the impugned Act under which it was made is saved by the reservations mentioned in clause 2 of article 19 which omitting immaterial words regarding laws relating to libel slander etc with which we are not concerned in this case saves the operation of any existinglaw in so far as it relates to any matter which undermines the security of or tends to overthrow the State
 The question accord ingly arises whether the impugned Act in so far as it purports by section 9 1 A to authorise the Provincial Government for the purpose of securing the public safety or the maintenance of public order to prohibit or regulate the entry into 1  2  598 or the circulation sale or distribution in the Province of Madras or any part thereof of any document or class of documents is a law relating to any matter which undermines the security of or tends to overthrow the State The impugned Act was passed by the Provincial Legisla ture in exercise of the power conferred upon it by section 100 of the Government of India Act 1935 read with Entry 1 of List II of the Seventh Schedule to that Act which com prises among other matters public order
 Now public order is an expression of wide connotation and signifies that state of tranquillity which prevails among the members of a political society as a result of the internal regula tions enforced by the government which they have estab lished
Although section 9 I A refers to securing the public safety and the maintenance of public order as distinct purposes it must be taken that public safety is used as a part of the wider concept of public order for if public safety were intended to signify any matter distinct from and outside the content of the expression public order it would not have been competent for the Madras Legislature to enact the provision so far as it relates to public safety
This indeed was not disputed on behalf of the respondents
But it was urged that the expression public safety in the impugned Act which is a statute relating to law and order means the security of the Province and therefore  the security of the State with the meaning of article 19 2as the State has been defined in article 12 as including among other things the Government and the Legislature of each of the erstwhile Provinces
Much reli ance was placed in support of this view on Rex vs Wormwood Scrubbs Prison1 where it was held that the phrase for securing the public safety and the  defence of
the realm in section 1 of the Defence of the Realm Consolidation Act 1914 was not limited to securing the country against a foreign foe but included also protection against internal disorder such as a rebellion
The decision is not of much assistance to the respondents as the context in 1 599 which the words public safety occurred in that Act showed unmistakably that the security of the State was the aim in view
Our attention has not been drawn to any definition of the expression public safety nor does it appear that the words have acquired any technical signification as words of article Public safety ordinarily means security of the public or their freedom from danger
In that sense anything which tends to prevent dangers to public health may also be regarded as securing public safety
The meaning of the expression must however vary according to the context
In the classification of offenCes in the Indian Penal Code for instance Chapter XIV enumerates the offences affecting the public health safety convenience decency and morals and it includes rash driving or riding on a public way section 279 and rash navigation of a vessel section 280 among others as offences against public safety while Chapter VI lists waging war against the Queen section 121 sedition section 124 A etc
as offences against the State because they are calculated to undermine or affect the security of the State and Chapter VIII defines of fences against the public tranquillity which include unlaw ful assembly section 141 rioting section 146 promot ing enmity between classes section 153 A affray sec tion 159 etc
Although in the context of a statute relat ing to law and order securing public safety may not in clude the securing of public health it may well mean secur ing the public against rash driving on a public way and the like and not necessarily the security of the State
It was said that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of the State rather than trivial offences like rash driving or an affray
But whatever ends the impugned Act may have been intended to subserve and whatever aims its framers may have had in view its application and scope cannot in the ab sence of limiting words in the statute itself be restricted to those aggravated forms of prejudicial activity which are calculated to 600 endanger the security of the State
Nor is there any guar antee that those authorised to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do not
The Government of India Act 1935 nowhere used the expression security of the State though it made provision under section 57 for dealing with crimes of violence intend ed to overthrow the Government
While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people the Governor was entrusted with the responsibility of combating the operations of persons who endangered the peace or tranquillity of the Province by committing or attempting to commit crimes of violence intended to overthrow the Govern ment
 Similarly article 352 of the Constitution empowers the President to make a Proclamation of Emergency when he is satisfied that the security of India or any part of the territory thereof is threatened by war or by external ag gression or by internal disturbance
 These provisions recognise that disturbance of public peace or tranquillity may assume such grave proportions as to threaten the securi ty of the State
As Stephen in his Criminal Law of England1 observes   Unlawful assemblies riots insurrections rebellions levying of war are offences which run into each other and are not capable of being marked off by perfectly defined boundaries
All of them have in common one feature namely that the normal tranquillity of a civilised society is in each of the cases mentioned disturbed either by actual force or at least by the show and threat of it
 Though all these offences thus involve disturbances of public tranquil lity and are in theory offences against public order the difference between them being only a difference  of degree yet for the purpose of grading the punishment to be inflict ed in respect of them they may be classified into different minor categories as has been done by 1 Vol
II p 242
601 the Indian Penal Code
Similarly the Constitution in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19 1 has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridge ment of freedom of speech and expression that is to say nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression while the right of peaceable assembly sub clause b and the right of association sub clause c may be restricted under clauses 3 and 4 of article 19 in the interests of public order which in those clauses includes the security of the State
The differentiation is also noticeable in Entry 3 of List III Concurrent List of the Seventh Sched ule which refers to the security of a State and mainte nance of public order as distinct subjects oflegislation
The Constitution thus requires a line to be drawn in the field of public order or tranquillity marking off may be roughly the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of the peace of a purely local significance treating for this purpose differences in degree as if they were differ ences in kind
It is also worthy of note that the word sedition which occurred in article 13 2 of the Draft Constitution pre pared by the Drafting Committee was deleted before the article was finally
passed as article 19 2
In this connection it may be recalled that the Federal Court had in defining sedition in Niharendu Dutt Majumdar vs The King Emperor 1 held that the acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency but the Privy Council overruled that 602 decision and emphatically reaffirmed the view expressed in Tilak s case 1 to the effect that the offence consisted in exciting or attempting to excite in others certain bad feelings towards the Government and not in exciting or attempting to excite mutiny or rebellion or any sort of actual disturbance great or small  King Emperor vs Sada shiv Narayan Bhalerao 2 Deletion of the word sedition from the draft article 13 2 therefore shows that criticism of Government exciting disaffection or bad feel ings towards it is not to be regarded as a justifying ground for restricting the freedom of expression and of the press unless it is such as to undermine the security of or tend to overthrow the State
It is also significant that the corre sponding Irish formula of undermining the public order or the authority of the State article 40 6 i of the Constitution of Eire 1937 did not apparently find favour with the framers of the Indian Constitution
Thus very narrow and stringent limits have been set to permissible legislative abridgement 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 founda tion of all democratic organisations for without free political discussion no public education so essential for the proper functioning of the processes of popular govern ment is possible
A freedom of such amplitude might involve risks of abuse
But the framers of the Constitution may well have reflected with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution that it is better to leave a few of its noxious branches to their luxuriant growth than by pruning them away to injure the vigour of those yielding the proper fruits Quoted in Near vs Minnesotta 3
We are therefore of opinion that unless a law restrict ing freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it such law cannot fall within the reservation under clause 2 of article 19 although the 1 21 LR 74 I A 89
8 282US 607 717 8
603 restrictions which it seeks to impose may have been con ceived generally in the interests of public order
It fol lows that section 9 1 A which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorised restrictions under clause 2 and is there fore void and unconstitutional
It was however argued that section 9 1 A could not be considered wholly void as under article 13 1 an existing law inconsistent with a fundamental right is void only to the extent of the inconsistency and no more
In so far as the securing of the public safety or the maintenance of public order would include the  security of the State the impugned provision as applied to the latter purpose was covered by clause 2 of article 19 and must it was said be held to be valid
We are unable to accede to this contention
Where a law purports to authorise the imposi tion of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right it is not possible to uphold it even so far as it may be applied within the constitutional lim its as it is not severable
So long as the possibility of its being applied for purposes not sanctioned by the Consti tution cannot be ruled out it must be held to be wholly unconstitutional and void
In other words clause 2 of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved an enactment which is capable of being applied to cases where no such danger could arise cannot be held to be constitutional and valid to any extent
The application is therefore allowed and the order of the respondents prohibiting the entry and circulation of the petitioner s journal in the State of Madras is hereby quashed
FAZL ALI J
For the reasons given by me in Brij Bhushan and Another vs The State1  which practically 605
604 involves the same question as is involved in this case I hold that the reliefs sought by the petitioner cannot be granted
In this view I would dismiss this petition but I should like to add a few observations to supplement what I have said in the other case
It appears to me that in the ultimate analysis the real question to be decided in this case is whether disorders involving menace to the peace and tranquillity of the Prov ince and affecting public safety will be a matter which undermines the security of the State or not
I have bor rowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested
If the answer to the question is in the affirmative as I think it must be then the impugned law which prohibits entry into the State of Madras of any document or class of documents for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19 2of the Constitution
From the trend of the arguments addressed to us it would appear that if a docu ment is seditious its entry could be validly prohibited because sedition is a matter which undermines the security of the State but if on the other hand the document is calculated to disturb public tranquillity and affect public safety its entry cannot be prohibited because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State
Speaking for myself I cannot understand this argument
In Brij Bhushan and Another vs The State1 I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal law like Sir James Stephen has classed sedition as an of fence against public tranquillity
If so how could sedi tion be a matter which would undermine the security of the State and public disorders and disturbance of public safety will not be such a matter It was argued that a small riot or an affray will not 1  605 undermine the security of the State but to this line of argument there is a two fold answer  1 The Act as its preamble shows is not intended for petty disorders but for disorders involving menace to the peace and tranquillity of the Province 2 There are de grees of gravity in the offence of sedition also and an isolated piece of writing of mildly seditious character by one insignificant individual may not also from the layman s point of view be a matter which undermines the security of the State but that would not affect the law which aims at checking sedition
It was also said that the law as it stands may be misused by the State executive but misuse of the law is one thing and its being unconstitutional is another
We are here concerned with the latter aspect only
I shall not pursue the matter further as I have said enough on the subject in the connected case
Petition allowed
Agent for the petitioner K J Kale
Agent for the opposite party  P A Mehta


Summary:
Held by the Full Court i overruling a preliminary objection Under the Constitution the Supreme Court is constituted the protector and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it refuse to entertain applications seeking protection against infringement of such rights although such applications are made to the Court in the first in stance without resort to a High Court having concurrent jurisdiction in the matter
Urquhart vs Brown  and Hooney vs Kolohan  distinguished
ii Freedom of speech and expression includes freedom propagation of ideas and that freedom is ensured by the freedom of circulation
Ex parte Jackson  and Lovell vs City of Griffin  referred to
Held per KANIA CJ PATANJALI SASTRI MEHR CHAND MAHAJAN MUKHERJEA and DAS JJ FAZL ALI J dissenting i Apart from libel slander etc
unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the over throw of it such law cannot fall within the reservation under cl
2 of article 19 of the Constitution although the restrictions which it seeks to impose may have been con ceived generally in the interests of public order
Section 9 1 A of the Madras Maintenance of Public Order Act XXXIII of 1949 which authorises impositions of restrictions for the wider purpose of securing public safety or the mainte nance of public order falls outside the scope of authorised restrictions under cl
2 and is therefore void and uncon stitutional ii Where a law purports to authorise the imposition of restrictions on a fundamental right in lan guage wide enough to cover restrictions both within and without the limits of constitutionally permissible legisla tive action affecting such right it is not possible to uphold it even so far as it may be applied within the constitutional limits as it is not severable
So long as the possibilitY of its being applied for purposes not sanc tioned by the Constitution cannot be ruled out 595 must be held to be wholly unconstitutional and void
Section 9 1 A is therefore wholly unconstitutional and void
Per FAZL ALI J Restrictions which section 9 1 A autho rised are within the provisions of cl
2 of article 19 of the Constitution and section 9 1 Ais not therefore unconstitutional or void1 Brij Bhushan and Another vs The State  referred to