Case: Virendra Vs. State of Punjab &amp; Another

exercised if it is satisfied as to the necessity for its exercise for the purposes mentioned in the section. In other words, the exercise of the power is made dependent on the subjective satisfaction of the State Government or its delegate. If the State Government or its delegate is satisfied that for the purposes of achieving the specified objects it is necessary to prohibit the publication of any matter relating to the "save Hindi agitation", then for the Court to say that so much restriction is not necessary to achieve those objects is only to substitute its own satisfaction for that of the State Government or its delegate. The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitation. 17. It is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse comments. Further, if there happens to be a change in their policy there will be nothing to prevent the petitioner from making a representation to the State Government asking it to modify its Notifications. In our view, having regard to the body of S. 2 (1) (a) and the two provisos thereto, namely, the conditions as to the satisfaction of the authority in respect of certain matters specified in the section, the time limit as to the efficacy of the Notifications and the right to make a representation given to the aggrieved party makes this grievance wholly illusory. 18. It is said that the Notifications should have been qualified so as to prohibit the publication of any matter relating to the "save Hindi agitation" which was likely to prejudicially affect the public order. Suppose such a qualification had been super-added, then there should be some-body who would have to judge whether any given publication did or did not affect the public order. If the editor claimed that it did not but the State held that it did who would decide and when? It would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as valid. The question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be considered. The only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itself. 19. It is lastly contended that the impugned Notifications have been made mala fide in order only to suppress legitimate criticisms and fair comments on public affairs. We have perused the articles annexed to the affidavit in opposition and referred to in the Notifications themselves and we are not satisfied that no reasonable person reading those articles could entertain the opinion and feel satisfied that it was necessary to make the order for the purposes mentioned in the section. We are unable to hold, on the materials before us, that the Notifications issued under S. 2 were mala fide. 20. The observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State Government. The absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently. 21.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]There is and can be no dispute that the right to freedom of speech and expression carries with it the right to propagate and circulate ones views and opinions subject to reasonable restrictions. The point to be kept in view is that the several rights of freedom guaranteed to the citizens by Art. 19 (1) are exercisable by them throughout and in all parts of the territory of IndiaThe Notifications under S. 2 (1) (a) prohibiting the printing and publishing of any article, report, news item, letter or any other material of any character whatsoever relating to or connected with "save Hindi agitation" or those under S. 3 (1) imposing a ban against the entry and the circulation of the said papers published from New Delhi in the State of Punjab do not obviously take away the entire right, for the petitioners are yet at liberty to print and publish all other matters and are free to circulate the papers in all other parts of the territory of IndiaThe restrictions, so far as they extend, are certainly complete but whether they amount to a total prohibition of the exercise of the fundamental rights must be judged by reference to the ambit of the rights and, so judged, there can be no question that the entire rights under Arts. 19 (1) (a) and 19 (1) (g) have not been completely taken away, but restrictions have been imposed upon the exercise of those rights with reference to the publication of only articles etc., relating to a particular topic and with reference to the circulation of the papers only in a particular territory and, therefore, it is not right to say that these Sections have imposed a total prohibition upon the exercise of those fundamental rightsThe expression "in the interest 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 interest of" the public order or the general public as the case may bewho will be the appropriate authority to determine at any given point of time as to whether the prevailing circumstances require some restriction to be placed on the right to freedom of speech and expression and the right to carry on any occupation, trade or business and to what extent?The answer was obvious, namely, that as the State Government was charged with the preservation of law and order in the State, as it alone was in possession of all material facts it would be the best authority to investigate the circumstances and assess the urgency of the situation that might arise, and to make up its mind whether any and if so what, anticipatory action must be taken for the prevention of the threatened or anticipated breach of the peaceThe Court is wholly unsuited to gauge the seriousness of the situation, for it cannot be in possession of materials which are available only to the executive Government. Therefore, the determination of the time when and the extent to which restrictions should be, imposed on the Press must of necessity be left to the judgment and discretion of the State Government and that is exactly what the Legislature did by passing the statuteIt gave wide powers to the State Government, or the authority to whom it might delegate the same, to be exercised only if it were satisfied as to the things mentioned in the two sections.The conferment of such wide powers to be exercised on the subjective satisfaction of the Government or its delegate as to the necessity for its exercise for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order cannot in view of the surrounding circumstances and tension brought about or aided by the agitation in the Press, be regarded as any thing but the imposition of permissible reasonable restrictions on the two fundamental rightsQuick decision and swift and effective action must be of the essence of those powers and the exercise of it must, therefore, be left to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make the exercise of these powers justiciable and subject to the judicial scrutiny will defeat the very purpose of the enactmentIn the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwarka Prasads case (D) (supra). It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegationThat apart, it will be remembered that the Uttar Pradesh Coal Control Order, 1953, with reference to which the observations were made, prescribed no principles and gave no guidance in the matter of the exercise of the power. There was nothing in that order to indicate the purpose for which and the circumstances under which the licensing authority could grant or refuse to grant, renew or refuse to renew or, suspend, revoke, cancel or modify any license under that order and, therefore, the power could be exercised by any person to whom the State Coal Controller might have chosen to delegate the sameNo rules had been framed and no directions had been given on the relevant matters to regulate or to guide the exercise of the discretion of the licensing officer. That cannot, in our judgment, be said about S. 2 or S. 3 of the impugned Act, for the exercise of the power under either of these two sections is conditioned by the State Government or the authority authorised by the said Government being satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect the public orderThe two sections before us lay down the principle that the State Government or the delegated authority can exercise the power only if it is satisfied that its exercise is necessary for the purposes mentioned in the sections. It cannot be exercised for any other purpose. In this view of the matter neither of these sections can be questioned on the ground that they give unfettered and uncontrolled discretion to the State Government or one executive officer in the exercise of discretionary powers given by the sectionNo assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of powerThis consideration cannot apply to the case now under consideration. Article 19 (2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the two sections of the impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purposeApart from the limitations and conditions for the exercise of the powers contained in the body of the two sections as hereinbefore mentioned, there are two provisios to S. 2 (1) (a) which are important. Under the first proviso the orders made under S. 2 (1) (a) can only remain in force for two months from the making thereof. Further, there is another proviso permitting the aggrieved person to make a representation to the state Government which may, on consideration thereof, modify, confirm or rescind the orderUnder cl.(b) of sub-s.(2) also there are several conditions, namely, that the matter required to be published must not be more than two columns, that adequate remuneration must be paid for such publication and that such requirement cannot prevail for more than one week. A consideration of these safeguards must, in our opinion, have an important bearing in determinating the reasonableness of the restrictions imposed by S. 2The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitationIt is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse commentsIt would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as validThe question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be consideredThe only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itselfThe observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State GovernmentThe absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently.