dedol-hf/india-case-legal-rag huggingface dataset:
requiring special measures.
    It  was argued that "public safety" and "maintenance  of
public order" are used in the Act disjunctively and they are
separated  by the word "or" and not "and," and therefore  we
cannot  rule  out the possibility of the Act  providing  for
ordinary  as well as serious cases of disturbance of  public
order and tranquillity.  This, as I have already  indicated,
is a somewhat narrow and technical approach to the question.
In  construing  the Act, we must try to get at its  aim  and
purpose,  and before the Act is declared to be  invalid,  we
must  see whether it is capable of being so construed as  to
bear  a reasonable meaning consistent with its validity.  We
therefore cannot ignore the fact that preservation of public
safety  is the dominant purpose of the Act and that it is  a
special Act providing for special measures and therefore  it
should  not be confused with an Act which is  applicable  to
ordinary  situations  and to any and every trivial  case  of
breach of public order,
614
In  my  opinion, the word "or" is used here not so  much  to
separate two wholly different concepts as to show that  they
are  closely allied concepts and can be used  almost  inter-
changeably in the context.  I think that "public order"  may
well  be paraphrased in the context as  public  tranquillity
and the words "public safety" and "public order" may be read
as  equivalent to "security of the State" and "public  tran-
quillity."
    I will now advert once more to clause (2) of article  19
and state what I consider to be the reason for inserting  in
it  the words "matter which undermines the security  of,  or
tends  to overthrow, the State."  It is well  recognized  in
all  systems of law that the right to freedom of speech  and
expression or freedom of the press means that any person may
write or say what he pleases so long as he does not infringe
the  law  relating to libel or slander  or  to  blasphemous,
obscene or seditious words or writings: (see Halsbury's Laws
of England, 2nd Edition, Vol. II, page 391).  This is  prac-
tically what has been said in clause (2) of article 19, with
this  difference only that instead of using the  words  "law
relating to sedition," the framers of the Constitution  have
used  the words mentioned above. It is interesting  to  note
that  sedition  was mentioned in the original draft  of  the
Constitution, but subsequently that word was dropped and the
words which I have quoted were inserted.  I think it is  not
difficult to discover the reason for this change and I shall
briefly state in my own words what I consider it to be.
     The latest pronouncement by the highest Indian tribunal
as to the law of sedition is to be found in  Niharendu  Dutt
Majumdar   v.  The King(1) which has been quoted  again  and
again  and in which Gwyer C.J. laid down that public  disor-
der, or the reasonable anticipation or likelihood of  public
disorder,  is the gist of the offence of sedition  and  "the
acts  or words complained of must either incite to  disorder
or
(1) [1942] F.C.R. 38.
615
must  be  such as to satisfy reasonable men  that  is  their
intention or tendency."  For this  view,  the learned  Chief
Justice  relied on certain observations of Fitzgerald J.  in
R.v. Sullivan (1), and he also added that he was content  to
adopt   "the words of that  learned Judge which  are  to  be
found in every book dealing with this branch of the criminal
law."  There is no doubt that what Gwyer C.J. has stated  in
that  case  represents the view of a number  of  Judges  and
authors and was also the view of Sir James Stephen in regard
to whom Cave J. in his charge to the jury in a case relating
to the law of sedition JR. v. Burns(2) said :--
    "The law upon the question of what is seditious and what
is  not  is  to be found stated very clearly in  a  book  by
Stephen J. who has undoubtedly a greater knowledge of crimi-
nal  law than any other Judge who sits upon the  Bench,  and
what he has said upon the subject of sedition was  submitted
to the other Judges, who sometime back were engaged with him
in  drafting  a  criminal code, and upon  their  report  the
Commissioners say that his statement of law appears to  them
to be stated accurately as it exists at present."
    The decision of  Gwyer C.J. held  the field  for several
years until the Privy Council, dealing with a case under the
Defence of India Rules, expressed the view  in  King  Emper-
or   v.  Sadhashiv  Narayan Bhalerao(3) that the  test  laid
down  by  the learned Chief Justice was  not  applicable  in
India  where  the offence under section 124A of  the  Indian
Penal  Code should be construed with reference to the  words
used in that section.  They also added :--
    "The  word 'sedition' does not occur either  in  section
124A or in the Rule; it is only found as a marginal note  to
section  124A, and is not an operative part of the  section,
but  merely provides the name by which the crime defined  in
the section will be known.
(1) [1868] 11 Cox c.c. 44.   (2) [1886] 16 cox 855.  (8)  74
I.A.
616
There  can be no justification for restricting the  contents
of the section by the marginal note.  In England there is no
statutory  definition of sedition; its meaning  and  content
have  been  laid down in many decisions, some of  which  are
referred  to by the Chief Justice, but these  decisions  are
not  relevant when you have  a statutory definition of  that
which is termed sedition as we have in the present case.
    Their  Lordships  are  unable to find  anything  in  the
language  of  either section 124A or the  Rule  which  could
suggest  that 'the acts or words complained of  must  either
incite  to disorder or must be such as to satisfy reasonable
men that this is their intention or tendency."
    The  framers  of the Constitution  must  have  therefore
found themselves face to face with the dilemma as to whether
the word "sedition" should be used in article 19 (2) and  if
it  was to be used in what sense it was to be used.  On  the
one  hand,  they must have had before their  mind  the  very
widely accepted view supported by numerous authorities  that
sedition was essentially an offence against public tranquil-
lity  and  was connected in some way or  other  with  public
disorder;  and, on the other hand, there was the  pronounce-
ment  of the Judicial Committee that sedition as defined  in
the  Indian Penal Code did not necessarily imply any  inten-
tion or tendency to incite disorder. In these circumstances,
it  is not surprising that they decided not to use the  word
"sedition"  in  clause (2) but used the more  general  words
which  cover sedition and everything else which makes  sedi-
tion such a serious offence.  That sedition  does  undermine
the security of the State is a matter which cannot admit  of
much  doubt.  That it undermines the security of  the  State
usually  through  the medium of public disorder  is  also  a
matter  on  which  eminent Judges and  jurists  are  agreed.
Therefore  it is difficult to hold that public  disorder  or
disturbance  of  public tranquillity are not  matters  which
undermine the security of the State.
617
    It will not be out of place to quote here the  following
passage from Stephen's Criminal Law of England (Vol. II, pp.
242 and 243) :--
    "It  often  happens, however, that the public  peace  is
disturbed  by offences which without tending to the  subver-
sion  of  the existing  political  constitution  practically
subvert  the authority of  the Government over a greater  or
less  local area for a longer or shorter time.  The  Bristol
riots  in  1832 and the Gordon riots in  1780 are  instances
of this kind. No definite line  can be drawn between  insur-
rections of this sort, ordinary  riots, and unlawful  assem-
blies.  The  difference between a meeting stormy  enough  to
cause  well-founded  fear of a breach of the  peace,  and  a
civil war the result of which may determine the course of  a
nation's  history for centuries, is a difference of  degree.
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  definite
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.
    Another  class of offences against  public  tranquillity
are  those  in which no actual force is either  employed  or
displayed, but in which steps are taken tending to cause it.
These  are  the  formation of  secret  societies,  seditious
conspiracies, libels or words spoken.
    Under these two heads all offences against the  internal
public  tranquillity  of  the  State may  be arranged."
    This  passage  brings out two  matters  with  remarkable
clarity.   It shows firstly that sedition is essentially  an
offence   against   public  tranquillity and  secondly  that
broadly  speaking there are two classes of offences  against
public  tranquillity:  (a)  those  accompanied  by  violence
including  disorders which
618
affect  tranquillity of a considerable number of persons  or
an  extensive local area, and (b) those not  accompanied  by
violence  but tending to cause it, such as seditious  utter-
ances,  seditious conspiracies, etc. Both these  classes  of
offences  are  such as will undermine the  security  of  the
State  or tend to overthrow it if left unchecked, and, as  I
have tried to point out, there is a good deal of  authorita-
tive opinion in favour of the view that the gravity ascribed
to  sedition is due to the fact that it tends  to  seriously
affect  the  tranquillity  and security of  the  State.   In
principle, then, it would not have been logical to refer  to
sedition in clause (2) of article 19 and omit matters  which
are  no  less grave and which have  equal  potentiality  for
undermining the security of the State.  It appears that  the
framers  of the Constitution preferred to adopt the  logical
course and have used the more general and basic words  which
are apt to cover sedition as well as other matters which are
as detrimental to the security of the State as sedition.
    If  the Act is to be viewed as I have suggested,  it  is
difficult  to hold that section 7 (1) (c) falls outside  the
ambit  of  article 19 (2). That clause clearly  states  that
nothing in clause (1) (a) shall affect the operation of  any
existing  law  relating to any matter which  undermines  the
security of, or tends to overthrow, the State.  I have tried
to  show that public disorders  and disturbance  of   public
tranquillity   do undermine the  security of  the State  and
if  the Act is a law aimed at preventing such disorders,  it
fulfils the requirement of the Constitution.  It is needless
to add that the word "State" has been defined in article  12
of  the Constitution to include "the Government and  Parlia-
ment of India and the Government and Legislature of each  of
the  States  and all local or other authorities  within  the
territory of India or under the control of the Government of
India."
    I find that section 20 of the impugned Act provides that
the Provincial Government may by notification
619
declare that the whole or any part of the Province as may be
specified  in  the notification is a  dangerously  disturbed
area.  This provision has some bearing on the aim and object
of  the Act, and we cannot overlook it when considering  its
scope.   It may be incidentally mentioned that we have  been
informed  that, under this section, Delhi Province has  been
notified to be a "dangerously disturbed area."
    It must be recognized that freedom of speech and expres-
sion  is  one of the most valuable rights guaranteed  to   a
citizen by the  Constitution and should be jealously  guard-
ed  by  the Courts.  It must also be  recognised  that  free
political discussion is essential for the proper functioning
of  a  democratic  government, and the  tendency  of  modern
jurists  is  to deprecate censorship though they  all  agree
that  "liberty of the press" is not to be confused with  its
"licentiousness."   But  the Constitution  itself  has  pre-
scribed  certain limits for the exercise of the  freedom  of
speech and expression and this Court is only called upon  to
see whether a particular case comes within those limits.  In
my  opinion,  the law which is impugned is  fully  saved  by
article 19 (2) and if it cannot be successfully assailed  it
is  not possible to grant the remedy which  the  petitioners
are seeking here.
    As has been stated already, the order which is  impugned
in  this  case recites that the weekly  Organizer  has  been
publishing highly objectionable matter constituting a threat
to  public  law and order" and that the action which  it  is
proposed  to take against the petitioners "is necessary  for
the  purpose of preventing or combating activities  prejudi-
cial  to public safety or the maintenance of public  order."
These facts are supported by an affidavit sworn by the  Home
Secretary  to the Chief Commissioner, who also states  among
other  things that the order in question was passed  by  the
Chief  Commissioner  in consultation with the Central  Press
Advisory Committee, which is  an independent body elected by
the All-India Newspaper Editors' Conference and is  composed
of
620
representatives  of some of the leading papers such  as  The
Hindustan Times, Statesman, etc.  In my  opinion, there  can
be no doubt that the Chief Commissioner has purported to act
in this case within the sphere within which he is  permitted
to  act  under the law, and it is beyond the power  of  this
Court to grant the reliefs claimed by the petitioners.
In these circumstances, I would dismiss the petitioners'
application.
Petition allowed.
Agent for the petitioners: Ganpat Rai.
Agent for the respondent: P.A. Mehta.
621
PETITIONER:
ROMESH THAPPAR
        Vs.
RESPONDENT:
THE STATE OF MADRAS
DATE OF JUDGMENT:
26/05/1950
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
KANIA, HIRALAL J. (CJ)
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
DAS, SUDHI RANJAN
MUKHERJEA, B.K.
CITATION:
 1950 AIR  124            1950 SCR  594
 CITATOR INFO :
 F          1950 SC 129  (26)
 R          1951 SC 270  (4)
 E          1951 SC 318  (25)
 D          1952 SC  75  (5,16)
E          1952 SC 329  (3,4,5)
 R          1953 SC 252  (31)
 RF         1953 SC 384  (5)
 RF         1957 SC 620  (3,4,5,7)
 RF         1957 SC 628  (12,16,20,21)
 E&D        1957 SC 896  (14)
 RF         1958 SC 578  (129)
 F          1959 SC 395  (13,40)
 R          1959 SC 725  (8)
 R          1960 SC 633  (9,16)
 RF         1961 SC1457  (8)
 RF         1962 SC 171  (23)
 R          1962 SC 305  (29)
 R          1962 SC 955  (21)
 R          1962 SC1621  (78,108,110,132)
R          1963 SC 996  (2,5)
 MV         1966 SC 740  (48,69)
 RF         1967 SC1110  (16)
 RF         1967 SC1643  (165,227)
 D          1969 SC 903  (23)
 D          1970 SC1923  (12,13)
 F          1971 SC2486  (8,13,14)
 R          1973 SC 106  (16)
 RF         1973 SC1461  (1705)
 RF         1974 SC1389  (247)
 RF         1977 SC 908  (23)
 R          1978 SC 597  (77)
 RF         1980 SC 494  (9)
 RF         1986 SC 515  (24,33,34)
 R          1986 SC 872  (74)
 RF         1989 SC 190  (11)
ACT:
Constitution of India, Art. 19, cls. (1) (a) and (2),  32
Application under Art. 32--Preliminary  objection--Fundamen-
tal right of freedom of speech and expression--Law  imposing
restrictions  for securing public order and  maintenance  of
public safety--Validity-Severability of Act--Madras  Mainte-
nance   of   Public  Order  Act  (XXIII  of  1949),   s.   9
(1-A)--Validity.
HEADNOTE:
   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  v. Brown (205 U.S. 179) and Hooney  v.  Kolohan
(294 U.S. 103) 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 (96 U.S. 727) and Lovell v.  City  of
Griffin (303 U.S. 444) referred to.
     Held  per  KANIA  C.J., 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 art. 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 s. 9  (1-A)  autho-
rised are within the provisions of cl. (2) of art. 19 of the
Constitution and s. 9 (1-A)is not therefore unconstitutional
or void.(1)
    Brij Bhushan and Another v. The State [1950] S.C.R.  605
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petition 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.
C.R.Pattabhi Raman, for the petitioner.
    K.  Rajah Ayyar, Advocate-General of MadraS,  (Ganapathi
Ayyar, with him) for the opposite party.
   1950.  May  26. The Judgment of Kania  C.J.,  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 v. 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
v. 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  v.
Brown  (2)  and Hooney v. 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)  I.L.R.  56 All. 158.     (2) 205 U. S. 179.    (3)  294
U.S. 103.
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  Jackson(1).  See also LoveIl v. City  of  Griffin(s).
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