ION Criminal Appeal No 76 of 1956
Appeal from the judgment and order dated August 27 1954 of the Allahabad High Court in Criminal Misc
Writ No 20 of 1954
823 K L Misra Advocate General for the State of Uttar Pradesh
Mathur and C P Lal for the appellants
N section Bindra for the respondent1960
January 21
The Judgment of the Court was delivered by SUBBA RAO J
This appeal raises the question of interpretation of the words  in the interest of public order  in article 192 of the Constitution
The facts are not in dispute and they lie in a small compass
The respondent Dr Ram Manohar Lohia is the General Secretary of the Socialist Party of India
The U P Government enhanced the irrigation rates for water supplied from canals to cultivators
The party to which the respondent belongs resolved to start an agitation against the said enhancement for the alleged reason that it placed an unbearable burden upon the cultivators
Pursuant to the policy of his party the respondent visited Farrukhabad and addressed two public meetings wherein he made speeches instigating the audience not to pay enhanced irrigation rates to the Government
On July 4 1954 at 10 pm he was arrested and produced before the City Magistrate Farrukhabad who remanded him for two days
After investigation the Station officer Kaimganj filed a charge sheet against the respondent before Sri P R Gupta a Judicial Officer at Farrukliabad
On July 6 1954 the Magistrate went to the jail to try the case against the respondent but the latter took objection to the trial being held in the jail premises
When the Magistrate insisted upon proceeding with the trial the respondent obtained an adjournment on the ground that he would like to move the High Court for transfer of the case from the file of the said Magistrate
Thereafter the respondent filed a petition before the High Court for a writ of habeas corpus on the ground among others that section 3 of the U P Special Powers Act Act No XIV of 1932 1932 hereinafter called the Act was void under the Constitution
105 824 In the first instance the petition came up for disposal before a division bench of the High Court at Allahabad consisting of Desai and Chaturvedi Elaborate arguments were addressed before them covering a wide field
The learned Judges delivered differing judgments expressing their views on the main points raised before them
They referred the matter to the Chief Justice for obtaining the opinion of a third Judge on the following two points  i Was the  provision of section 3 of the U P Special Powers Act of 1932 making it penal for a person by spoken words to instigate class of persons not to pay dues recoverable as arrears of land revenue inconsistent with article 191a of the Constitution on the 26th of January 1950   and  ii if so was it in the interests of public order  
The petition was placed before Agarwala J as a third Judge who agreeing with Desai J gave the following answers to the questions referred to him  Question No i
The provision of section s of the U P Special Powers Act 1932 making it penal for a person by spoken words to instigate a class of persons not to pay dues recoverable as arrears of land revenue was inconsistent with Article 191a of the Constitution on the 26th January 1950 Question No ii
 The restrictions imposed by section 3 of the U P Special Powers Act 1932 were not in the interests of public order
 In the usual course the matter was placed before the two learned Judges who first heard the case and they on the basis of the majority view allowed the petition and directed the respondent to be released
The State has preferred the present appeal against the said order of the High Court
The learned Advocate General appearing for the appellant
stated before us that be did not propose to canvass the correctness of the majority view on one of the important points raised in the case namely that the effect of the passing of the Act did not ipso facto deprive a citizen of his freedom of speech guaranteed
under article 191 a of the Constitution and its validity should be tested by the provisions 825 of article 192 thereof
He did not
concede the validity of the finding in this regard but assumed its correctness for the purpose of this case
Nothing further therefore need be mentioned on this point
The gist of the argument of the learned Advocate General may be stated thus The legislature can make laws placing reasonable restrictions on the rights of a citizen to freedom of speech and expression in the interests of public order among other grounds
The words in the interests of public order are wider in connotation than the words  for the maintenance of public order 
Laws are rules made by the legislature for the governance of the people in the State which they are bound to obey and they are enacted to keep public peace and order
The avowed object of section 3 of the Act was to prevent persons from instigating others to break the laws imposing a liability upon a person or class of persons to pay taxes and other dues to the State any authority or to any land owner
The impugned section was enacted in the interests of public order and therefore the section was protected by article 192 of the Constitution
The learned Advocate General pointed out that the object of the State in preferring this appeal was to obtain the decision of this Court on the question of constitutional validity of section 3 of the Act and not to pursue the matter against Dr Lohia
The respondent was not present at the time the appeal was heard and was not represented by an advocate
As the question raised was an important one we requested Mr N section Bindra to assist the Court and he kindly agreed to do so
He supported the majority view of the High Court
We record our thanks for his assistance
At the outset it would not be out of place to notice briefly the history of the Act
The Act was originally passed in the year 1932 during the British rule
In an attempt to offset the campaign of non payment of taxes and other forms of agitation resorted to by the Congress Party originally it was put on the statute book for one year but in 1940 when the State was under the  Governor s rule  the Act was made 826 permanent
Under the Act sections 1 and 2 came into effect immediately on the passing of the Act and section 12 enabled the Government by notification to extend all or any of the remaining sections to any district or to any part of a district in the United Provinces
After the Constitution the Act was not repealed but was allowed to continue with necessary adaptations in the statue book
Between April and June 1954 the State Government extended the provisions of the Act to 33 districts including Farrukhabad district
Now lot us look at the provisions of the Act to ascertain its scope and field of operation
The preamble discloses that it was enacted in 1932 to make provision against and to take powers to deal with instigation to the illegal refusal of the payment of certain liablities and section 2 defines  liablity  to mean  land revenue or any sum recoverable as arrears of land revenue or any tax rate cess or other dues or amount payable to Government or to any local authority or rent of agricultural land or anything recoverable as arrears of or along with such rent 
Section 3 prescribes the punishment for instigation to the non payment of a liability
As the argument centres round this section it will be convenient to read the same Section 3 Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any person or class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations con
taining such instigation shall thereby be communicated directly or indirectly to any person or class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both
 Section 4 says that any person to whom an arrear of liability is due may apply to the Collector to realize it and the Collector is authorized to realize the same 827 as an arrear of land revenue
The impugned section may be dissected into the following components i whoever by word either spoken or written or by signs or by visible representations or otherwise ii instigates iii expressly or by implicationiv any person or class of persons v not to pay any liability vi to defer payment of any liability vii does an act with intent that any words etc
shall be communicated to any person or class of persons viii with the knowledge that it is likely that such words etc
shall be communicated to any person or class of persons ix such communication may be made directly or indirectly and x shall be punished with imprisonment or with fine or with both
Under this section a wide net has been cast to catch in a variety of acts of instigation ranging from friendly advice to a systematic propaganda not to pay or to defer payment of liability to Government any authority or to any person to whom rent is payable in respect of agricultural land
The meaning of this section read along with sections 2 and 4 can be ascertained more clearly by illustration than by definition
1 A instigates B not to pay any liability to Government any authority or to any land owner 2 A instigates B to defer payment of any liability to Government any authority or landlord 3 A instigates a class of persons to do the same 4 A may do any one of the foregoing things not only by word but also by signs visible representations or otherwise 5 A may do any one of the things bona fide either to get the claim decided in a Court of law or to gain time to get the law changed 6 A may instigate B not to pay any amount due to Government or to any authority but the said amount can be recovered by the authority concerned as arrears of land revenue 7 A may tell C with intention or with knowledge that the said instigation may be communicated to B so that he may not pay 8 any statement by A to C may imply such instigation
In its wide amplitude the section takes in the innocent and the guilty persons bona fide and mala fide advice individuals and class abstention from payment and deferment of payment 828 expressed or implied instigation indirect or direct instigation liability due not only to Government but to any authority or landholder
In short no person whether legal adviser or a friend or a well wisher of a person instigated can escape the tentacles of this section though in fact the rent due has been collected through coercive process or otherwise
We shall now proceed to consider the constitutional validity of this section
The material portions of the relevant provisions of the Constitution may now be read Article 19  1 All citizens shall have the right a to freedom of speech and expression 2 Nothing in sub clause a of clause 1 shall affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the security of the State friendly relations with foreign States public order decenc or morality or in relation to contempt of courtdefamation or incitement to an offence
 Clause 2 of article 19 was amended by the Constitution First Amendment Act 1951
By this amendment several new grounds of restrictions upon the freedom of speech have been introduced such as friendly relations with foreign States public order and incitement to an offence
It is self evident and common place that freedom of speech is one of the bulwarks of a democratic form of Government
It is equally obvious that freedom of speech can only thrive in an orderly society
Clause 2 of article 19 therefore does not affect the operation of any existing law or prevent the State from making any law in so far as such law imposes reasonable restrictions on the exercise of the right of freedom of speech in the interest of public order among others
To sustain the existing law or a new law made by the State under cl
2 of article 19 so far as it is relevant to the present enquiry two conditions should be 829 complied with viz i the restrictions imposed must be reasonable and ii they should be in the interests of public order
Before we consider the scope of tile word  of limitation  reasonable restrictions and  in the interests of  it is necessary to ascertain the true meaning of the expression public order  in the said clause
The expression public order has a very wide connotation
Order is the basic need in any organised society
It implies the orderly state of society or community in which citizens can peacefully pursue their normal activities of life
In the words of an eminent Judge of the Supreme Court of America  the essential rights are subject to the elementary need for order without which the guarantee of those rights would be a mockery 
The expression has not been define in the Constitution but it occurs in List II of its Seventh Schedule and is also inserted by the Constitution First Amendment Act 1951 in el
2 of article 19
The sense in which it is used in article 19 can only be appreciates by ascertaining how the Article was construed before it was inserted therein and what was the defect to remedy which the Parliament inserted the same by the said amendment
The impact of el
2 of article 19 on article 191a before the said amendment was subject to judicial scrutiny by this Court in Romesh Thappar vs The State of Madrasl
There the Government of Madras in exercise of their powers under section 91 A of the Madras Maintenance of Public Order Act 1949 purported to issue an order whereby they imposed a ban upon the entry and circulation of the journal called  Cross Roads  in that State
The petitioner therein contended that the said order contravened his fundamental right to freedom of speech and expression
At the time when that order was issued the expression  public order  was not in article 192 of the Constitution but the words  the security of the State  were there
In considering whether the impugned Act was made in the interests of security of the State Patanjali Sastri J as he then was after citing the observation of Stephen in his Criminal Law of England states 1 1950 SCR 594 600 601 602 830 Though all these offences thus involve disturbances of public tranquillity and are in theory offences against public order the difference between them being only a difference of degree yet for the purpose of gurading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by 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 abridgement 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 expres sion   The learned Judge continued to state  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 differences in kind
 The learned Judge proceeded further to state  We are therefore of opinion that unless a law restricting 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 restrictions which it seeks to impose may have been conceived generally in the interests of public order
 This decision establishes two propositions viz i maintenance of public order is equated with maintenance of public tranquillity and ii the offences against 831 public order are divided into two categories viz a major offences affecting the security of the State and b minor offences involving breach of purely local significance
This Court in Brij Bhushan vs The state of Delhi 1 followed the earlier decision in the context of section 7 1 c of the East Punjab Public Safety Act 1949
Fazl Ali J in his dissenting judgment gave the expression  public order  a wider meaning than that given by the majority view
The learned Judge observed at p 612 thus  When we approach the matter in this way we find that while  public disorder  is wide enough to cover a small riot or an affray and other cases where peace is disturbed by or affects a small group or persons public unsafety or insecurity of the State will usually be connected with serious internal disorders and such disturbances of public tranquillity as jeopardize the security of the State  This observation also indicates that  public order  is equated with public peace and safety
Presumably in an attempt to get over the effect of these two decisions the expression  public order  was inserted in article 19 2 of the Constitution by the Constitution First Amendment Act 1951 with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under cl
2 of article 19
After the said amendment this Court explained the scope of Romesh Thappar s Case 1 in The state of Bihar vs shailabala Devi 
That case was concerned with the constitutional validity of section 4 1 a of the Indian Press Emergency Powers Act 1931
It deals with the words or signs or visible representations which incite to or encourage or tend to incite to or encourage the commission of any offence of murder or any cognizable offence involving violence
Mahajan J as he then was observed at p 660  The deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity drawn from our decision in 1  2  106 832 Romesh Thappar s case could easily have been avoided as it was avoided by Shearer J who in very emphatic terms said as follows I have read and re read the judgments of the Supreme Court and I can find nothing in them myself which bear directly on the point at issueand leads me to think that in their opinion a restriction of this kind is no longer permissible
 The validity of that section came up for consideration after the Constitution First Amendment Act 1951 which was expressly made retrospective and therefore the said section clearly fell within the ambit of the words  in the interest of public order 
That apart the observations of Mahajan J as he then was indicate that even without the amendment that section would have been good inasmuch as it aimed to prevent incitement to murder
The words  public order  were also understood in America and England as offences against public safety or public peace
The Supreme Court of America observed in Cantewell vs Connecticut 1 thus The offence known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquillity
It includes not only violent acts and words likely to produce violence in others
No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot When clear and present danger of riot disorder interference with traffic upon the public streets or other immediate threat to public safety peace or order appears the power of the State to prevent or punish is obvious
 The American decisions sanctioned a variety of restrictions on the freedom of speech in the interests of public order
They cover the entire gamut of restrictions that can be imposed under different heads in article 192 of our Constitution
The following summary of some of the cases of the Supreme Court of America given in a well known book on Constitutional Law illustrates the range of categories of cases covering 1   308 833 that expression
 In the interests of public order the State may prohibit and punish the causing of loud and raucousnoise  in streets and public places by means of sound amplifying instruments regulate the hours and place of public discussion and the use of the public streets for the purpose of exercising freedom of speech provide for the expulsion of hecklers from meetings and assemblies punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere public inconvenience annoyance or unrest 
 In England also Acts like Public Order Act 1936 Theatres Act 1843 were passed the former making it an offence to use threatening abusive or insulting words or behaviour in any public place or at any public meeting with intent to provoke a breach of the peace or whereby a breach of the peace is likely to be caused and the latter was enacted to authorise the Lord Chamberlain to prohibit any stage play whenever he thought its public performance would militate against good manners decorum and the preservation of the public peace
The reason underlying all the decisions is that if the freedom of speech was not restricted in the manner the relevant Acts did public safety and tranquillity in the State would be affected
But in India under article 192 this wide concept of public order  is split up under different heads
It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interests of the security of the State friendly relations with foreign States public order decency or morality or in relation to contempt of court defamation or incitement to an offence
All the grounds mentioned therein can be brought under the general head  public order  in its most comprehensive sense
But the juxtaposition of the different grounds indicates that though sometimes they tend to overlap they must be ordinarily intended to exclude each other
 Public order  is therefore something which is demarcated from the others
In that limited sense particularly in view of the history of the amendment it can be pustulated that public order  834 is synonymous with public peace safety and tranquillity
The next question is what do the words  interest of public order  mean  The learned Advocate General contends that the phrase in the interest of public order is of a wider connotation than the words for the maintenance of public order andtherefore any breach of law which may have the tendency however remote to disturb the public order would be covered by the said phrase
Support is Sought to be drawn for this wide proposition from the judgment of this Court in Ramji Lal Modi vs The State of UP 1
It is not necessary to state the facts of that case as reliance is placed only on the observations of Das CJ at p 865 which read It will be noticed that the language employed in the amended clause is in the interests of and not for the maintenance of
As one of us pointed out in Debi Saron vs The State of Bihar 2 the expression in the interests of makes the ambit of protection very wide
A law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order
 The learned Chief Justice again in Virendra vs The State of Punjab 3 observed at p 317 much to the same effect As has been explained by this Court in Ramji Lal Modi vs The State of UP 1 the words in the interests of are words of great amplitude and are much wider than the words for the maintenance of
 The expression in the interests of makes the ambit of the protection very wide for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it may have been enacted in the interests of the public order or the general public as the case may be
 We do not understand the observations of the Chief Justice to mean that any remote or fanciful connection between the impugned Act and the public order 1  2 AI R 1954 Pat 254 3  835 would be sufficient to sustain its validity
The learned Chief Justice was only making a distinction between an Act which expressly and directly purported to maintain public order and one which did not expressly state the said purpose but left it to be implied therefrom  and between an Act that directly maintained public order and that indirectly brought about the same result
The distinction does not ignore the necessity for intimate connection between the Act and the public order sought to be maintained by the Act
Apart from the said phrase another limitation in the clause namely that the restrictions shall be reasonable brings about the same result
The word reasonable has been defined by this Court in more than one decision
It has been held that in order to be reasonable restrictions must have reasonable relation to the object which the legislation seeks to achieve and must not go in excess of that object
The restriction made in the interests of public order must also have reasonable relation to the object to be achieved ie the public order
If the restriction has no proximate relationship to the achievement of public order it cannot be said that the restriction is a reasonable restriction within the meaning of the said clause
A full bench decision of the Federal Court in Rex vs Basudeva 1 contains some observations which give considerable assistance to construe the words
In that case the appellant was detained in pursuance of the order made by the Government of UP under the UP Prevention of Black Marketing Temporary Powers Act 1947
The question was whether the preventive detention provided for in section 31 i of the said Act was preventive detention for reasons connected with the maintenance of public order
The argument in that case ran on the same lines as in the present case
The learned Advocate General there urged that habitual black marketing in essential commodities was bound sooner or later to cause a dislocation of the machinery of controlled distribution which in turn might lead to breaches of the peace and that therefore detention with a view to prevent such black marketing was covered by the 1 AIR 1950 FC 67 836 entry
Answering that argument Patanjali Sastri Jas he then was pointed out at p 69 Activities such as these are so remote in the chain of relation to the maintenance of public order that preventive detention on account of them cannot in our opinion fall within the purview of Entry I of List II  The connection contemplated must in our view be real and proximate
 not far fetched or problematical
 The decision in our view lays down the correct test
The limitation imposed in the interests of public order to be a reasonable restriction should be one which has a proximate connection or nexus with public order but not one far fetched hypothetical or problematical or too remote in the chain of its relation with the public order
We shall now test the impugned section having regard to the aforesaid principles
Have the acts prohibited under section 3 any proximate connection with public safety or tranquility  We have already analysed the provisions of section 3 of the Act
In an attempt to indicate its wide sweep we pointed out that any instigation by word or visible representation not to pay or defer payment of any exaction or even contractual dues to Government authority or a landowner is made an offence
Even innocuous speeches are prohibited by threat of punishment
There is no proximate or even forseeable connection between such instigation and the public order sought to be protected under this section
We cannot accept the argument of the learned Advocate General that instigation of a single individual not to pay tax or dues is a spark which may in the long run ignite a revolutionary movement destroying public order
We can only say that fundamental rights cannot be controlled on such hypothetical and imaginary considerations
It is said that in a democratic set up there is no scope for agitational approach and that if a law is bad the only course is to get it modified by democratic process and that any instigation to break the law is in itself a disturbance of the public order
If this argument without obvious limitations be accepted it would 837 destroy the right to freedom of speech which is the very foundation of democratic way of life
Unless there is a proximate connection between the instigation and the public order the restriction in our view is neither reasonable nor is it in the interest of public order
In this view we must strike down section 3 of the Act as infringing the fundamental right guaranteed under article 191a of the Constitution
The learned Advocate General then contended that the section is severable and that if so severed the section may be made to function within the limited field that stands the test of article 192 of the Constitution
He asks us to read the section as follows  Whoever by word either spoken or written or by signs or by visible representations or otherwise instigates expressly or by implication any class of persons not to pay or to defer payment of any liability and whoever does any act with intent or knowing it to be likely that any words signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any class of persons in any manner whatsoever shall be punishable with imprisonment which may extend to six months or with fine extending to Rs 250 or with both By so doing he argues that instigation of a class of persons only is made liable and thereby the section is rid of the vice of unconstitutionality
The doctrine of severability vis a vis the fundamental rights is sought to be supported on the basis of the wording of article 131 of the Constitution
Under that Article laws in so far as they are inconsistent with the provisions of Part III ire void only to the extent of such inconsistency
But this implies that consistent and inconsistent parts of a law are severable
This doctrine in its relation to fundamental rights was considered by this Court in three decisions
In Romesh Thapper s case 1 such an argument has been repelled by this Court
Patanjali Sastri J as he then was statd the legal position thus at p 603 1 1950 SCR 594 600 601 602
838 Where a law purports to authorise the imposition 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 rightit 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 sanctioned by the Constitution cannot be ruled out it must be held to be wholly unconstitutional and void In Chintaman Rao vs The State of Madhya Pradesh the same principle is again restated
Mahajan J as he then was observed at p 765 The law even to the extent that it could be said to authorize the imposition of restrictions in regard to agricultural labour cannot be held valid because the language employed is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting the right
So long as the possibility of  its being applied for purposes not sanctioned by the Constitution cannot be ruled out it must be held to be wholly void
 The wide reach of this principle appears to have been circumscribed to some extent in a later decision of this Court in R M D Chamarbaugwalla vs The Union of India 2
In that case the constitutionality of sections 4 and 5 of the Prize Competitions Act 42 of 1955 was challenged on the ground that prize competition  as defined in section 2d of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill
This Court having regard to the history of the legislation the declared object thereof and the wording of the statute came to the conclusion that the competitions which were Sought to be controlled and regulated by the Act were only those competitions in which success did not depend to any substantial degree on skill
That conclusion was sufficient to reject the contention raised in that case but even on the assumption that 1  2 1957 SCR 930 839 prize competition as defined in section 2d of the Act included those in which success depended to substantial degree on skill as well as those in which it did not so depend this Court elaborately considered the doctrine of severability and laid down as many as seven rules of construction
On the application of the said rules it was held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill
The foregoing discussion yields the following results 1  Public order  is synonymous with public safety and tranquillity  it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals such as revolution civil strife war affecting the security of the State 2 there must be proximate and reasonable nexus between the speech and the public order 3 section 3 as it now stands does not establish in most of the cases comprehended by it any such nexus 4 there is a conflict of decision on the question of severability in the context of an offending provision the language whereof is wide enough to cover restrictions both within and without the limits of constitutionally permissible legislation one view is that it cannot be split up if there is possibility of its being applied for purposes not sanctioned by the Constitution and the other view is that such a provision is valid if it is severable in its application to an object which is clearly demarcated from other object or objects falling outside the limits of constitutionally permissible legislation and 5 the provisions of the section are so inextricably mixed up that it is not possible to apply the doctrine of severability so as to enable us to affirm the validity of a part of it and reject the rest
It is not necessary in this case to express our preference for one or other of the foregoing decisions
Assuming that the summary of the rules of construction given in the last of the cases cited supra are correct and exhaustive we are not satisfied that in the instant case the impugned section with the 107 840 omissions suggested by the learned Advocate General could wholly or to any extent be salvaged
The words of the section with the suggested omissions continue to suffer from the same vice they are subjected to without the said omissions
The Suggested omissions from the section only exclude individuals from the operation of the section and confine it to a class of persons and in other respects it is not freed from the defects already pointed out by us
In R M D Chamarbaugwalla s Case 1 the difference between two classes of competitions namely those that are of gambling nature and those in which success depends on skill is clear cut and has long been recognized in legislative practice
But in the present case it is not even possible to predicate with some kind of precision the different categories of instigation falling within or without the field of constitutional prohibitions
The constitutional validity of a section cannot be made to depend upon such an uncertain factor
Whether the principle of the first two decisions is applied or that of the third is invoked the constitutional validity of the section cannot be sustained
We therefore hold that section 3 of the Act is void as infringing article 191a of the Constitution
The entire section therefore must be struck down as invalid
If so the prosecution of the respondent under that section is void
The learned Advocate General made an impassioned appeal to persuade us to express our view that though the present section is void on the ground that it is an unreasonable restriction on the fundamental right in the interests of public order the State could legitimately re draft it in a way that it would conform to the provisions of article 192 of the Constitution
It is not this Court s province to express or give advice or make general observations on situations that are not presented to it in a particular case
It is always open to the State to make such reasonable restrictions which are permissible under article 192 of the Constitution
In the result the appeal is dismissed
Appeal dismissed


Summary:
The sole trustee of a deity in a suit prayed for a decree for the recovery of the arrears of income of a property alleging that the property in dispute constituted a specified endowment for Kalyanotsavam of the deity and the appellants who were trustees of the said property had committed default in carrying out the purpose of the trust but there was no formal Prayer for the declaration that the said properties and income thereof formed a specific endowment for the said due performance of the services of Kalyanotsovam of the deity and feeding charges and other expenses
The defence raised was that lnam was a personal grant burdened with service of the deity and that it was not a specific trust or an endowment for the benefit of the idol
The High Court after allowing the respondents to amend the plaint by adding a formal prayer for declaration stating that the properties and income thereof formed a specific endowment for the due performance of the services of Kalyanotsavam of the deity held in favour of the respondents and further observed that the appellants were liable to pay the entire income to the deity
On appeal to the Supreme Court it was contended for the appellants inter alia 1 that the grant was a personal grant burdened with the provision for service and it was not a specific grant
2 that High Court should not have allowed the amendment of the plaint
Held that in the instant case the grant was a specific endowment for Kalyanotsavam of the deity and therefore a specific trust and not a grant to the appellants with the added obligation of spending on the service
In considering the question of the nature of a grant the inam registers have always been treated as evidence of the utmost importance particularly where Sanad  Inam title deeds are not produced and when two inferences are possible from the reading of documents there is no reason why the Supreme Court will interfere with the view taken by the courts below
When at the time of a grant the specific charitable payments exhaust the income of the property it is a fair inference to draw 769 therefrom that the intention was to devote the whole income to charity and any subsequent increase in the value of the property accrues to the charity and the courts would be right to apply the doctrine of Cy pres
Held further that where necessary allegations had been made in a plaint and the requisite pleas raised and issues framed on the question and the parties were fully cognizant on the points in controversy and necessary evidence led by them the courts would be right in allowing the amendment by the addition of a prayer in the prayer clause which was in the nature of formal relief which flowed from the allegation in the plaint