Case: Kameshwar Prasad And Others Vs. The State Of Bihar And Another

the benefit of the exposition of the meaning of the expression "in the interest of public order" in these two clause by this Court in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, 1960-2 SCR 821 : (AIR 1960 SC 633 ). Speaking for the Court Subba Rao J. summarised his conclusion on the point in these terms:"Public order (Art. 19(2) and (3) is synonymous with public safety and tranquility. It is the absence of disorder involving breaches of local significance on contradistinction to national upheavals such as revolution, civil strife, was affecting the security of the State."The learned Judge further stated that in order that a legislation may be "in the interests of public order" there must be a proximate and reasonable nexus between the nature of the speech prohibited and public order. The learned Judge rejected the argument that the phrase "in the interests of public order" which is wider than the words "for the maintenance of public order" which were found in the Article a originally enacted - thereby sanctioned the enactment of a law which restricted the right merely because the speech had a tendency however remore to disturb public order. The connection has to be intimate, real and rational. The validity of the rule now impugned has to be judged with reference to the tests here propounded.16. If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.17. We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.18. Learned Counsel for the respondent and those who supported the validity of the rule could not suggest that on the language of the rule as it stood, it was possible to so read it as to separate the legal from the unconstitutional portion of the provision. As no such separation is possible the entire rule has to be struck down as unconstitutional.19. We have rejected the broad contention that persons in the service of government form a class apart to whom the rights guaranteed by Part III do not, in general, apply. By accepting the contention that the freedoms guaranteed by Part III and in particular those in Art. 19(1)(a) apply to the servants of government we should not be taken to imply that in relation to this class of citizens the responsibility arising from official position would not by itself impose some limitations on the exercise of their rights as citizens. For instance, S. 54(2) of the Income Tax Act, 1922 enacts:"If a public servant discloses any particulars contained in any such statement, return, accounts, documents, evidence, affidavit, deposition or record, he shall be punishable with imprisonment which may extend to six months, and shall also be liable to fine".Section 128(1) of the Representation of the People Act, 1951 enjoins on every officer, clerk, agent etc. who performs any duty in connection with the recording or counting of votes at an election shall maintain the secrecy of the voting and shall not communicate to any person any information calculated to violate such secrecy, and visits the breach of the rule by punishment with imprisonment for a term which may extend to three months or with fine. It cannot be contended that provisions on these or similar lines in these or other enactments restrict the freedom of the officers etc. merely because they are prohibited from communicating information which comes to them in the course of the performance of duties of their office to others. The information having been obtained by them in the course of their duties by virtue of their official position, rules or provisions of the law prescribing the circumstances in which alone such information might be given out or used do not infringe the right of freedom of speech as is guaranteed by the Constitution.

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

Explanation:
1[ds]Obviously proceeds on the basis of persons in the service of Government being entitled to the protection of the fundamental rights guaranteed by Part III of the Constitution and is inserted to enable special provision being made for the abrogation, if necessary, of the guaranteed freedom in the case of two special services only, viz., the army and the police force. The approach to the question regarding the constitutionality of the rule should be whether the ban that it imposes on demonstrations would be covered by the limitation of the guaranteed rights contained in Arts. 19(2) and 19(3). In regard to both these clauses the only relevant criteria which has been suggested by the respondent-State is that the rule is framed "in the interest of public order". A demonstration may be defined as an expression of ones feelings by outward signs". A demonstration such as is prohibited by the rule may be of the most innocent type - peaceful, orderly such as the mere wearing of a badge by a Government servant or even by a silent assembly say outside office hours- demonstrations which could in no sense be suggested to involve any breach of tranquillity, or of a type involving incitement to or capable of leading to disorder. If the rule had confined itself to demonstrations of a type which would lead to disorder then the validity of that rule could have been sustained but what the rule does is the imposition of a blanket-ban on all demonstrations of whatever type-innocent as well as otherwise-and in consequence its validity cannot befind ourselves unable to accept the argument that the Constitution excludes Government servants as a class from the protection of the several rights guaranteed by the several Articles in Part III save in those cases where such persons were specifically named.In our opinion, this argument even if otherwise possible, has to be repelled in view of the terms of Art. 33. That Article selects two of the Services under the State - members of the armed forces and forces charged with the maintenance of public order and saves the rules prescribing the conditions of service in regard to them-from invalidity on the ground of violation of any of the fundamental rights guaranteed by Part III and also defines the purpose for which such abrogation or restriction might take place, this being limited to ensure the proper discharge of duties and the maintenance of discipline among them. The Article having thus selected the Services members of which might be deprived of the benefit of the fundamental rights guaranteed to other persons and citizens and also having prescribed the limits within which such restrictions or abrogation might take place, we consider that other classes of servants of Government in common with other persons and other citizens of the country cannot be excluded from the protection of the rights guaranteed by Part III by reason merely of their being Government servants and the nature and incidents of the duties which they have to discharge in that capacity might necessarily involve restrictions of certain freedoms as we have pointed out in relation to Art. 19(1)(e) and"demonstration" is defined in the Concise Oxford Dictionary as "an outward exhibition of feeling, as an exhibition of opinion on political or other question especially a public meeting or procession". In Webster it is defined as "a public exhibition by a party, sect or society . . . . . .. . . . as by a parade or mass-meeting. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of ones ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has however to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Art. 19(1)(a) or 19(1)(b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Art. 19(1)(a) and 19(1)(b). It is needless to add that from the very nature of things a demonstration may take various forms; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a violent and disorderly demonstration and this would not obviously be within Art. 19(1)(a) or (b). If can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.If one had to consider the propriety of the rule as one intended to ensure proper discipline apart from the limitations on law-making, in a Government servant and in the context of the other provisions made for the making of representations and for the redress of service grievances, and apart from the limitations imposed by the Constitution there could be very little doubt nor would it be even open to argument that the rule now impugned was both reasonable and calculated to ensure discipline in the Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the function of the rule the argument as regards Art. 19(2) and (3) was put on a twofold basis : (1) that the maintenance of public order was directly dependent upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance of public order but was a sine qua non of public order. (2) The other aspect in which it was presented was the negative of the one just now mentioned that if Government servants were ill-disciplined and were themselves to agitate in a disorderly manner for the redress of their service grievances, this must lead to a demoralisation of the public and would be reflected in the disappearance of public order.We find ourselves unable to uphold this submission on behalf of the State. In the first place, we are not here concerned with any rule for ensuring discipline among the police force which is the arm of the law primarily charged with the maintenance of public order. The threat to public order should therefore arise from the nature of the demonstration prohibited. No doubt, if the rule were so framed as to single out those types of demonstration which were likely to lead to a disturbance of public tranquility or which would fall under the other limiting criteria specified in Art. 19(2) the validity of the rule could have been sustained. The vice of the rule, in our opinion, consists in this that it lays a ban on every type of demonstration- be the same however innocent and however incapable of causing a breach of public tranquility and does not confine itself to those forms of demonstrations which might lead to that result.