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

2. The Daily Pratap was started about 38 years back in Lahore, the capital of the unitedPunjab.It is a daily newspaper printed in the Urdu language and script. Since the partition of the country the Daily Pratap is being published simultaneously from Jullundur and from New Delhi. Vir Arjun is a Hindi daily newspaper also published simultaneously from Jullundur and from New Delhi3. The petitioners allege that after the appointment of the States Reorganisation Commission on December 29, 1953, the Akali party in the Punjab started a campaign for the partition of the State of Punjab on communal and linguistic basis. According to the petitioners this agitation soon degenerated into a campaign of hatred which threatened the peace of the State. The petitioners maintain that the Hindu inhabitants of the State belonging to all shades of opinion and also a section of the Sikh community and the Congress Party were strongly opposed to that proposalIt is in the circumstances reasonable to infer that the Hindus would also indulge in a counter propaganda in the Press and from the platform against the agitation started by the Akali party. It is admitted that the policy of these two papers, the Daily Pratap and Vir Arjun, has been to oppose the Akali demand for partition of the State ofPunjab.Obviously a good deal of tension was generated in the State by reason of the two bitterly opposing parties trying to propagate their Respective ideologiesAbout a year back the Congress Party, which is the ruling party, is said to have surrendered to the communal pressure of the Akalies and accepted what has since come to be known as the regional formula. It was amidst the din and bustle of this ideological war and to prevent and combat any possible activity prejudicial to the maintenance of communal harmony that the Legislature of the State of Punjab found it necessary to pass the impugned Act which received the assent of the President on October 19, 1956, and came into force on the 25th of the same month5. It appears that on or about May 30, 1957, a movement known as the "save Hindi Agitation" was started by a Samiti which goes by the name of Hindi Raksha Samiti. The Arya Samaj which claims to be a cultural and religious society joined this campaign for changing what they conceive to be the objectionable features of the regional formula and the Sachar formula on languageAccording to the petitioners the Hindi Raksha Samiti, the sponsor of the "save Hindi Agitation" claims that it has the support of practically all sections of the Hindus of the State. The petitioners who are the editors, printers and publishers of the two newspapers published simultaneously from Jullundur and New Delhi respectively consider that the objectionable clauses of those formulae are not only unjust and unfair to the cause of propagating the national language in the country but are also a contrivance to secure the political domination of the minority community over the majorityAdmittedly the petitioners have been publishing criticisms and news concerning the agitation which, according to them, are quite fair and legitimate, but they allege that newspapers like Prabhat and Ajit, which support the Akali party in the State have been publishing articles and news couched in a strong and violent language against the "save Hindi agitation" and the Hindu communityThe agitation apparently followed the usual course and pattern of all political agitation of this kind with its attendant demonstrations, slogans and satyagraha by the volunteers and lathi charge by the police. Eventually on 10-7-1957, the agitation culminated in the "save Hindi agitation" volunteers forcible entry into the Secretariat of the Punjab Government at Chandigarh. It was in these circumstances that the four Notifications complained of were issued6. On 13-7-1957, a Notification under S. 2 (1)(a) of the impugned Act was issued against the petitioner Virendra, as the editor, printer and publisher of the Daily Pratap published from Jullundar. It was in the following terms:"Whereas I, Ranbir Singh, Home Secretary, Punjab Government, authorised by the said Government under S. 2 (1) of the Punjab Special Powers (Press) Act, 1956, on examination of the publications enumerated in the annexure relating to the "save Hindi agitation" have satisfied myself that action is necessary for combating the calculated and persistent propaganda carried on in the newspaper the Pratap published at Jullundar to disturb communal harmony in the State of Punjab;And whereas the said propaganda by making an appeal to communal sentiments has created a situation which is likely to affect public order and tranquillity in the State;And therefore in pursuance of the powers conferred under sub-cl.(a) of cl. (1) of S. 2 of the said Act, I prohibit Shri Virendra the Printer publisher and the editor of Pratap from printing and publishing any article, report, news item letter or any other material of any character whatsoever relating to or connected with "save Hindi agitation" for a period of two months from this dateNo: 8472 -C (H)57/ 14679."The annexure referred to in the Notification sets out the headings of fifteen several articles published in this paper between 30-5-1957, to 8-7-1957. Another Notification in identical terms with an annexure setting forth the heading of sixteen articles published during the same period in Vir Arjun was issued on the same day against Virendra as the editor, printer and publisher of Vir Arjun published from Jullundar7. On 14-7-1957, two Notifications in identical terms were issued under S. 3 of the impugned Act against K. Narendra as the editor, printer and publisher of Daily Pratap and Vir Arjun published from New Delhi. It will suffice to set out the Notification in respect of Daily Pratap which ran as follows:"Punjab Government Gazette ExtraordinaryPublished by AuthorityChandigarh, Sunday, July 14,1957Home Department NotificationThe 14th July, 1957No. 8453-C (H)-57/14580 :- Whereas I, Ranbir Singh, Home Secretary to Government, Punjab authorised by the said Government under S. 3 of the Punjab Special Powers (Press) Act, 1956 have satisfied myself that it is necessary to combat and prevent the propaganda relating to "save Hindi Agitation" carried on in the Pratap with the object of disturbing communal harmony in the State of Punjab and thereby affecting public order;Now therefore, in exercise of the powers conferred by S. 3 (1) of the said Act, I do hereby prohibit the brining into Punjab of the newspaper printed and published at Delhi, from the date of publication of this notification."

Court's reasoning:
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.