dedol-hf/india-case-legal-rag huggingface dataset:
points  of distinction between the schemes of the  two  Acts
are immaterial for the present discussion.  In the words  of
Lord  Cairns  the very nature of the thing empowered  to  be
done by the appellant and the conditions under which he  has
to  fix  the amount of the duty, couple the power  with  the
duty  to  state  a case for the opinion of  the  Court.  The
provisions  of section 51 (1) and (a) run on the same  lines
as section 59 of the Stamp Act.  Mr.  Daphtary next  pointed
out  that there was a difference in the scheme of  the  Act,
because  when the Collector issued a certificate under  sec-
tion  32,  even though his assessment might  be  faulty  and
against  the interest of the State, the State or the  appel-
lant  had  no remedy. This overlooks the provisions  of  the
section  empowering the Collector to issue the  certificate.
The scheme of the Stamp Act may be briefly noticed.  Chapter
II contains provisions about the liability of instruments to
duty, of the time of stamping instruments, of valuations for
duty  and provisions as to the person by whom duty is  'pay-
able.  Chapter  III which contains only two  sections  deals
with  the adjudication as to stamps. The first (section  31)
is where an instrument, whether executed or not and  whether
previously stamped or not, is brought to the Collector  with
an application to have his opinion as to the duty with which
it is chargeable.  For obtaining that opinion the  applicant
has  to pay a fee.  The Collector may call  for  information
and take evidence.  After he has done so he determines the
546
amount of the stamp duty and certifies under section 32 that
the full duty with which it is chargeable has been paid.  It
is obvious that the party applying is interested in  obtain-
ing  the opinion and therefore he cannot object to the  cer-
tificate  of the Collector.  If the Collector himself is  in
doubt  he has the power under section 56 (2) to ask for  the
opinion  of  the appellant. It is therefore  clear  that  in
respect of these two provisions under Chapter III no  griev-
ance could exist on either side.  From section 33 and  Chap-
ter IV onwards there are provisions in which the opinion  of
the Stamp Officer and of the party interested in paying  the
stamp  duty may come in conflict.  The sections in  Chapters
IV,  V and VI ending with section 61, deal  with  situations
arising  from  such difference of opinion.  Section  57  (1)
falls  under this heading.  In our opinion, therefore,  this
contention of the appellant fails.
    The  next  point urged was whether the  High  Court  has
jurisdiction to order the Revenue Authority to state a  case
in  face of the provisions of section 226 of the  Government
of  India Act, 1935.  The argument was urged in  two  parts:
Firstly, that this being a. revenue matter, the jurisdiction
of  the Court was excluded.  Secondly, that the  matter  had
ceased to be in the stage of assessment but had reached  the
stage  of  collection  of stamp duty.  On  that  ground  the
present  case was sought to be distinguished  from  Alcock's
case(1). In our opinion this argument of the appellant  must
also  fail.  A similar argument based on the wording of  the
corresponding  section  106 (2) of the Government  of  India
Act,  1915,  as  mentioned  above,  was  urged  in  Alcock's
case(1).  On that point their Lordships observed as  follows
:--" Upon the point thus broadly stated their Lordships have
no  difficulty in pronouncing a decision.  To argue that  if
the  legislature says that a public officer, even a  revenue
officer, shall do a thing and he, without cause or  justifi-
cation,  refused to ,do that thing, yet the Specific  Relief
Act  would not be applicable and there would be no power  in
the Court to compel him to give relief to the subject is  to
state a
(1) 50 I.A. 227.
547
proposition  to which their Lordships must  refuse  assent."
In dealing with the argument that because of section 106 (2)
of the Government of India Act, 1915, the High Court had  no
jurisdiction  to make the order, the Board observed as  fol-
lows :--" In their Lordships' view the order of a High Court
to  a revenue officer to do his statutory duty would not  be
the exercise of original jurisdiction in any matter concern-
ing the revenue." In our opinion, in the present case  also,
the  respondent seeks the Court's intervention to  make  the
appellant perform his statutory duty to state a case.   That
is not exercising the original jurisdiction of the Court  in
any  matter  concerning the revenue. It is only  asking  the
appellant to perform his statutory duty.  The further  argu-
ment that the proceedings in this case had passed beyond the
stage  of assessment and had reached the stage of  enforcing
payment is again irrelevant because by the relief granted by
the  High Court no attempt is made to obstruct  the  Revenue
Authority  in the discharge of his duties.  At one stage  an
injunction  was granted against the appellant but  that  has
been  cancelled.  In fact, this aspect of the discussion  is
only academic because if payment is enforced and the opinion
of  the Court, on the statement of the case is  against  the
appellant,  he  will  have to act in  conformity  with  that
opinion  under  section 59 (2) of the Stamp Act  and  refund
whatever may be held to be recovered in excess.
    In  our opinion therefore the contentions of the  appel-
lant fail and the appeal is dismissed with costs.
Appeal dismissed.
Agent for the appellant: R.S. Narula..
Agent for the respondent: Tanubhai C. Desai.
71
548
PETITIONER:
BRIJ BHUSHAN AND ANOTHER
        Vs.
RESPONDENT:
THE STATE OF DELHI.
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  129            1950 SCR  605
 CITATOR INFO :
 R          1951 SC 270  (4)
 RF         1952 SC 329  (3,4)
 RF         1957 SC 620  (3,5,7)
 RF         1958 SC 578  (129,151)
F          1959 SC 395  (13,40)
 R          1960 SC 633  (9)
 RF         1962 SC 305  (25)
 R          1962 SC 955  (21)
 MV         1966 SC 740  (48)
 RF         1967 SC1643  (227)
 RF         1971 SC2486  (8,13,14)
 E          1973 SC 106  (16)
 RF         1986 SC 515  (22,24,33,97)
 RF         1989 SC 190  (11)
ACT:
   Constitution  of  India,  Art.  19,  cls.  (1)  (a)  and
(2)--Fundamental   right   of   freedom   of   speech    and
expression--Law  imposing pre-censorship on  newspapers  for
securing    public    safety    and    preventing     public
disorder--Validity--Matter   disturbing  public  safety   or
causing  public disorder, whether "undermines  the  security
of,  or tends to over* throw, the State"--Scope of Art.  19,
cl.  (2)--East  Punjab Public Safety Act, 1949, sec.  7  (1)
(c)--Validity.
HEADNOTE:
Section  7  (1) (c) of the East Punjab  Public  Safety  Act,
1949,  as  extended to the Province of Delhi  provided  that
"the Provincial Government or any authority authorised by it
in  this behalf, if satisfied that such action is  necessary
for preventing or combating any activity prejudicial to  the
public  safety  or the maintenance of public order  may,  by
order  in  writing addressed to a a  printer,  publisher  or
editor require that any matter relating to a
606
particular subject or class of subjects shall before  publi-
cation be submitted for scrutiny."
Held  per  KANIA C. J.,  PATANJALI  SASTRI,  MEHR  CHAND
MAHAJAN,  MUKHERJEA  and DAS JJ.--(FAZL ALI  J.  dissenting)
that  inasmuch as s. 7 (1) (c) authorised the imposition  of
restrictions  on the fundamental right of freedom of  speech
and expression guaranteed by art. 19 (1.) (a) of the Consti-
tution for the purpose of preventing activities  prejudicial
to public safety and maintenance of public order, it was not
a law relating to "a matter which undermines the security of
or tends to overthrow, the State" within the meaning of  the
saving  provisions contained in cl. (9.) of art. 19 and  was
therefore unconstitutional and void.
Romesh Thappar v. The State ([1950] S.C.R. 594) followed.
    Per FAZL ALI J.-- The expression "public safety" has, as
a result of a long course of legislative practice acquired a
well-recognised meaning and may be taken to denote safety or
security  of the State; and, though the  expression  "public
order"  is  wide enough to cover small disturbances  of  the
peace which do not jeopardise the security of the State yet,
prominence given in the Act to public safety, the fact  that
the  Act  is a piece of special  legislation  providing  for
special measures and the aim and scope of the Act in  gener-
al, show that preservation of public safety is the  dominant
purpose  of  the Act, and "public order" may well  be  para-
phrased  in  the context as "public  tranquillity".   Public
disorders which disturb the public tranquillity do undermine
the  security  of the State and as s. 7 (1) (c) of  the  im-
pugned  Act  is  aimed at preventing such  disorders  it  is
difficult to hold that it falls outside the ambit of art. 19
(2) of the Constitution.
    Held  by the Full Court.--The imposition of  pre-censor-
ship  on  a journal is a restriction on the liberty  of  the
press which is an essential part of the right to freedom  of
speech  and expression declared by art. 19  (1)(a).   Black-
stone's Commentaries referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. XXIX of 1950.
    Application  under  article 32 of  the  Constitution  of
India  for a writ of certiorari and prohibition.  The  facts
are stated in the judgment.
    N.C. Chatterjee (B. Banerji, with him) for the petition-
er.
    M.C. Setalvad, Attorney-General for India, (S. M. Sikri,
with him) for the respondent.
    1950.  May  26. The judgment of  Kania  C.J.,  Patanjali
Sastri, Mehr Chand Mahajan, Mukherjea and Das JJ. was deliv-
ered by Patanjali Sastri J.
Fazl Ali J. delivered a separate dissenting judgment,
607
    PATANJALI SASTRI J.--This is an application under  arti-
cle 32 of the Constitution praying for the issue of writs of
certiorari  and  prohibition to the  respondent,  the  Chief
Commissioner  of Delhi, with a view to examine the  legality
of  and quash the order made by him in regard to an  English
weekly  of  Delhi called the Organizer of  which  the  first
applicant  is the printer and publisher, and the  second  is
the editor.  On 2nd March, 1950, the respondent, in exercise
of powers conferred on him by section 7 (1) (c) of the  East
Punjab  Public Safety Act, 1949, which has been extended  to
the  Delhi  Province and is hereinafter referred to  as  the
impugned Act, issued the following order:
"Whereas  the  Chief Commissioner, Delhi,  is  satisfied
that  Organizer, an English weekly of Delhi, has  been  pub-
lishing highly objectionable matter constituting a threat to
public  law  and  order and that action  as  is  hereinafter
mentioned  is  necessary for the purpose  of  preventing  or
combating activities prejudicial to the public safety or the
maintenance of public order.
    Now  there more in exercise of the powers  conferred  by
section 7 (1)(c) of the East Punjab Public Safety Act, 1949,
as extended to the Delhi Province, I, Shankar Prasad,  Chief
Commissioner, Delhi, do by this order require you Shri  Brij
Bhushan, Printer and Publisher and Shri K.R. Halkani, Editor
of the aforesaid paper to submit for scrutiny, in duplicate,
before publication, till further orders, all communal matter
and news and views about Pakistan including photographs  and
cartoons  other than those derived from official sources  or
supplied  by the news agencies, viz., Press Trust of  India,
United  Press  of India and United Press of America  to  the
Provincial Press Officer, or in his absence, to Superintend-
ent  of Press Branch at his office at 5, Alipur Road,  Civil
Lines, Delhi, between the hours 10 a.m. and 5 p.m. on  work-
ing days."
     The only point argued before us relates to the  consti-
tutional  validity of section 7 (1) (c) of the impugned  Act
which, as appears from its preamble, was passed "to  provide
special measures to ensure public safety
608
and  maintenance of public order."  Section 7 (1) (c)  under
which  the aforesaid order purports to have been made  reads
(so far as material here) as follows :--
    "The Provincial  Government or any authority  authorised
by it in this behalf if satisfied that such action is neces-
sary for the purpose of preventing or combating any activity
prejudicial  to  the  public safety or  the  maintenance  of
public order may, by order in writing addressed to a  print-
er, publisher or editor require that any matter relating  to
a  particular  subject  or class of  subjects  shall  before
publication be submitted for scrutiny."
    The petitioners claim that this provision infringes  the
fundamental  right to the freedom of speech  and  expression
conferred  upon them by article 19 (1) (a) of the  Constitu-
tion inasmuch as it authorises the imposition of a  restric-
tion  on the publication of the journal which is not  justi-
fied under clause (2) of that article.
There can be little doubt that the imposition of precen-
sorship on a journal is a restriction on the liberty of  the
press which is an essential part of the right to freedom  of
speech  and  expression declared by article 19  (1)(a).   As
pointed  out by Blackstone in his Commentaries "the  liberty
of  the press consists in laying no previous restraint  upon
publications,  and not in freedom from censure for  criminal
matter when published.  Every freeman has an undoubted right
to  lay  what sentiments he pleases before  the  public;  to
forbid this, is to destroy the freedom of the press(1).  The
only  question therefore is whether section 7  (1)(c)  which
authorises the imposition-of such a restriction falls within
the reservation of clause (2) of article 19.
    As  this  question  turns on  considerations  which  are
essentially  the  same  as those on which  our  decision  in
Petition No. XVI of 1950(2) was based, our judgment in  that
case  concludes the present case also. Accordingly, for  the
reasons  indicated in that judgment, we allow this  petition
and hereby quash the impugned order of the Chief Commission-
er, Delhi, dated the 2nd March, 1950.
(1) Blackstone's Commentaries, Vol. IV, pp. 151, 152.
(2) Romesh Thappar v. The State of Madras, supra p. 594.
609
FAZL ALI J.--The question raised in this case relates  to
the validity of 'section 7 (1) (c) of the East Punjab Public
Safety  Act,  1949 (as extended to the Province  of  Delhi),
which runs as follows :-
  "The  Provincial Government or  any  authority  authorised
by it in this behalf if satisfied that such action is neces-
sary for the purpose of preventing or combating any activity
prejudicial  to  the  public safety or  the  maintenance  of
public order, may, by order in writing addressed to a print-
er, publisher or editor--
       *      *      *            *
    (c)  require  that any matter relating to  a  particular
subject  or  class of subjects shall before  publication  be
submitted for scrutiny;"
    It should be noted that the provisions of sub-clause (c)
arc  not in general terms but are confined to a  "particular
subject or class of subjects," and that having regard to the
context in which these words are used, they must be connect-
ed with "public safety or the maintenance of public order."
     The  petitioners,  on whose behalf  this  provision  is
assailed,  are respectively the printer (and publisher)  and
editor of an English  weekly of Delhi  called Organizer, and
they pray for the issue of writs of certiorari and  prohibi-
tion  to  the Chief Commissioner, Delhi, with  a  view'  'to
examine  and review the legality"      of and "restrain  the
operation"  of and "quash" the order made by him on the  2nd
March,  1950, under the impugned section,   directing   them
"to  submit for scrutiny, in duplicate, before  publication,
till further orders, all communal matter and news and  views
about Pakistan including photographs and cartoons other than
those derived from official sources or supplied by the  news
agencies..."  The  order  in question  recites  among  other
things  that the Chief Commissioner is  satisfied  that  the
Organizer  has  been publishing highly objectionable  matter
constituting  a  threat  to public law and  order  and  that
action to which reference has been made is necessary for the
purpose  of preventing  or  combating  activities
610
    prejudicial  to the public safety or the maintenance  of
public order.  It is contended on behalf of the  petitioners
that  notwithstanding  these recitals the  order  complained
against  is liable to be quashed, because it amounts  to  an
infringement  of the right of freedom of speech and  expres-
sion  guaranteed by article 19 (1) (a) of the  Constitution.
Articles 19 (1) (a) and (2), which are to be read  together,
run as follows :-
      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 in so far as  it  relates
to,  or prevent the State from making any law  relating  to,
libel, slander, defamation, contempt of Court or any  matter
which  offends against decency or morality or  which  under-
mines the security of, or tends to overthrow, the State."
    It is contended that section 7 (1)(c) of the Act,  under
which  the impugned order has been made, cannot be saved  by
clause  (2)  of article 19 of the Constitution,  because  it
does not relate to any matter which undermines the  security
of, or tends to overthrow, the State.  Thus the main  ground
of  attack is that the impugned law is an infringement of  a
fundamental  right and is not saved by the so-called  saving
clause to which reference has been made.
    There can be no doubt that to impose pre-censorship on a
journal, such as has been ordered by the Chief  Commissioner
in  this case, is a restriction on the liberty of the  press
which  is  included in the right to freedom  of  speech  and
expression guaranteed by article 19 (1) (a) of the Constitu-
tion,  and  the  only question which we  have  therefore  to
decide  is whether clause (2) of article 19 stands  in   the
way of the petitioners.
    The  East Punjab Public Safety Act, 1949, of which  sec-
tion  7 is a part, was passed by the Provincial  Legislature
in exercise of the power conferred upon it by section 100 of
the Government of India Act, 1935, is
611
read with Entry 1 of List II of the Seventh Schedule to that
Act,  which  includes among other  matters  "public  order."
This  expression in the general sense may be   construed  to
have reference to the maintenance of what is generally known
as  law and order in the Province, and this is confirmed  by
the  words which follow it in Entry 1 of List II  and  which
have been put within brackets, viz., "but not including  the
use  of  naval, military or air forces or  any  other  armed
forces of the Union in aid of the civil power."  It is clear
that  anything which affects public tranquillity within  the
State or the Province will also affect public order and  the
State  Legislature is therefore competent to frame  laws  on
matters  relating to public tranquillity and  public  order.
It was not disputed that under the Government of India  Act,
1935  (under, which the impugned Act was passed) it was  the
responsibility  of each Province to deal with all   internal
disorders  whatever their magnitude may be and  to  preserve
public tranquillity and order within the Province.
    At  this  stage, it will be convenient to  consider  the
meaning of another expression "public safety" which is  used
throughout the impugned Act and which is also chosen by  its
framers for its title.  This expression, though it has  been
variously used in different contexts (see the Indian   Penal
Code,  Ch. XIV), has now acquired a well-recognized  meaning
in relation to an Act like the impugned Act, as a result  of
a  long course of legislative practice, and may be taken  to
denote  safety or security of the State.  In this sense,  it
was  used in the Defence of the Realm  (Consolidation)  Act,
1914,  as well as the Defence of India Act. and this is  how
it was judicially interpreted in Rex v. Governor of Wormwood
Scrubbs Prison(1). The headnote of this case runs as follows
   "By section 1 of the Defence of the Realm (Consolidation)
Act, 1914, power was given to His Majesty in Council 'during
the  continuance  of  the  present  war  to  issue   regula-
tions   ......  for securing the public safety and  the  de-
fence of the realm' :--
(1) [1920] 2 K.B. 305.
612
    Held,  that the regulations thereby authorized were  not
limited  to  regulations for the protection of  the  country
against  foreign enemies, but included regulations  designed
for the prevention of internal disorder and rebellion "
    Thus  'public  order'  and 'public  safety'  are  allied
matters,  but,  in  order to appreciate how  they  stand  in
relation  to each other, it seems best to direct our  atten-
tion to the opposite concepts which we may, for  convenience
of  reference, respectively label as 'public  disorder'  and
'public unsafety'.  If 'public safety' is, as we have  seen,
equivalent to 'security of the State', what I have designat-
ed  as  public  unsafety may be regarded  as  equivalent  to
'insecurity  of the State'. 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  of
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.
    In order to understand the scope of the Act, it will  be
necessary  to  note that in the Act "maintenance  of  public
order" always occurs in juxtaposition with "public  safety",
and the Act itself is called "The East Punjab Public  Safety
Act."  The prominence thus given to 'public safety' strongly
suggests  that  the Act was intended to  deal  with  serious
cases  of public disorder which affect public safety or  the
security of the State, or cases in which, owing to some kind
of emergency or a grave situation having arisen, even public
disorders  of comparatively small dimensions may  have  far-
reaching effects on the security of the State.  It is to  be
noted that the Act purports to provide "special measures  to
ensure public safety and maintenance of public order."   The
words "special measures" are rather important, because  they
show  that  the Act was not intended for ordinary  cases  or
ordinary situations.  The ordinary cases are provided for by
the Penal Code and other existing laws, and
613
with  these the Act which purports to be of a temporary  Act
is  not apparently concerned.  It is concerned with  special
measures  which  would presumably be  required  for  special
cases or  special  situations.  Once this important fact  is
grasped  and  the Act is viewed in the  proper  perspective,
much  of the confusion which has been created in the  course
of  the  arguments  will disappear.  The  line  of  argument
advanced on behalf of the petitioners is that since the  Act
has  been  passed in exercise of the power  granted  by  the
expression  "public order," used in the Government of  India
Act,  which is a general term of wide import, and  since  it
purports  to provide for the maintenance of   public  order,
its provisions are intended or are liable to be used for all
cases  of breaches of public order, be they small or  insig-
nificant  breaches  or those of a grave or  serious  nature.
This  is, in my opinion, approaching the case from  a  wrong
angle.  The Act is a piece of special legislation  providing
for  special measures and the central idea dominating it  is
public safety and maintenance of public order in a situation