dedol-hf/india-case-legal-rag huggingface dataset:
which (omitting immaterial words regarding laws relating  to
libel,  slander,  etc., with which we are not  concerned  in
this case) saves the operation of any "existinglaw in so far
as  it relates to any matter which undermines  the  security
of, or tends to overthrow, the State." The question  accord-
ingly  arises  whether, the impugned Act, in so  far  as  it
purports  by  section 9 (1-A) to  authorise  the  Provincial
Government "for the purpose of securing the public safety or
the maintenance of public order, to prohibit or regulate the
entry  into (1) 96 U.S. 727.                        (2)  303
U.S, 444.
598
or the circulation, sale or distribution in the Province  of
Madras  or  any  part thereof of any document  or  class  of
documents" is a "law relating to any matter which undermines
the security of or tends to overthrow the State."
    The  impugned Act was passed by the Provincial  Legisla-
ture  in exercise of the power conferred upon it by  section
100  of the Government of India Act 1935, read with Entry  1
of  List II of the Seventh Schedule to that Act, which  com-
prises  among  other  matters, "public order."  Now  "public
order"  is an expression of wide connotation  and  signifies
that state of tranquillity which prevails among the  members
of  a political society as a result of the internal  regula-
tions  enforced  by the government which  they  have  estab-
lished.  Although  section 9 (I-A) refers to  "securing  the
public  safety"  and "the maintenance of  public  order"  as
distinct purposes, it must be taken that "public safety"  is
used as a part of the wider concept of public order, for, if
public safety were intended to signify any 'matter  distinct
from  and  outside  the content of  the  expression  "public
order,"  it  would not have been competent  for  the  Madras
Legislature  to enact the provision so far as it relates  to
public safety. This indeed was not disputed on behalf of the
respondents.   But it was urged that the expression  "public
safety" in the impugned Act, which is a  statute relating to
law  and  order, means the security of  the  Province,  and,
therefore,' 'the security of the State" with the meaning  of
article 19 (2)as "the State" has been defined in article  12
as  including,  among other things, the Government  and  the
Legislature of each of the erstwhile Provinces.  Much  reli-
ance  was placed in support of this view on Rex v.  Wormwood
Scrubbs  Prison(1) where it  was held that the  phrase  "for
securing  the public safety and the' defence of. the  realm"
in  section  1 of the Defence of the  Realm  (Consolidation)
Act, 1914, was not limited to securing the country against a
foreign  foe but included also protection  against  internal
disorder  such as a rebellion.  The decision is not of  much
assistance to the respondents as the context in
(1) L.R. [1920] 2 K.B. 805.
599
which the words "public safety" occurred in that Act  showed
unmistakably  that the security of the State was the aim  in
view.  Our attention has not been drawn to any definition of
the expression "public safety," nor does it appear that  the
words have acquired any technical signification as words  of
art.
"Public safety" ordinarily means security      of the public
or  their  freedom from danger.  In  that   sense,  anything
which tends to prevent dangers to     public health may also
be  regarded as securing public safety. The meaning  of  the
expression must, however, vary according to the context.  In
the classification of offenCes in the Indian Penal Code, for
instance, Chapter XIV enumerates the "offences affecting the
public  health, safety, convenience, decency,  and   morals"
and  it  includes  rash driving or riding on  a  public  way
(section 279) and rash navigation of a vessel (section 280),
among  others,  as  offences against  public  safety,  while
Chapter VI lists waging war against the Queen (section 121),
sedition  (section  124-A)  etc. as  "offences  against  the
State",  because they are calculated to undermine or  affect
the  security of the State, and Chapter VIII  defines   "of-
fences against the public tranquillity" which include unlaw-
ful assembly (section 141) rioting (section  146),   promot-
ing   enmity between  classes (section 153-A), affray  (sec-
tion 159) etc.  Although in the context of a statute  relat-
ing  to law and order "securing public safety" may  not  in-
clude the securing of public health, it may well mean secur-
ing the public against rash driving on a public way and  the
like, and not necessarily the security of the State.  It was
said  that an enactment which provided for drastic  remedies
like  preventive  detention and ban on  newspapers  must  be
taken  to  relate to matters affecting the security  of  the
State rather than trivial offences like rash driving, or  an
affray.   But whatever ends the impugned Act may  have  been
intended to subserve, and whatever aims its framers may have
had  in view, its application and scope cannot, in  the  ab-
sence of limiting words in the statute itself, be restricted
to those aggravated forms of prejudicial activity which  are
calculated to
600
endanger the security of the State.  Nor is there any  guar-
antee that those authorised to exercise the powers under the
Act  will in using them discriminate between those  who  act
prejudicially to the security of the State and those who  do
not.
    The  Government  of India Act, 1935,  nowhere  used  the
expression" security of the State" though it made  provision
under section 57 for dealing with crimes of violence intend-
ed to overthrow the  Government. While the administration of
law and order including the maintenance of public order  was
placed  in charge of a Minister elected by the  people,  the
Governor was entrusted with the responsibility of  combating
the  operations  of  persons who "endangered  the  peace  or
tranquillity of the Province" by committing or attempting to
commit "crimes of violence intended to overthrow the Govern-
ment."  Similarly, article 352 of the Constitution  empowers
the President to make a Proclamation of Emergency when he is
satisfied  that  the "security of India or any part  of  the
territory  thereof is threatened by war or by  external  ag-
gression  or  by internal disturbance."   These   provisions
recognise  that disturbance of public peace or  tranquillity
may assume such grave proportions as to threaten the securi-
ty of the State.
    As   Stephen   in  his  'Criminal  Law   of   England(1)
observes:''   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
defined 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."  Though all
these offences thus involve disturbances of public tranquil-
lity  and are in theory offences against public  order,  the
difference between them being only a difference' of  degree,
yet for the purpose of grading the punishment to be inflict-
ed in respect of them they may be classified into  different
minor categories as has been done by
(1) Vol. II, p. 242.
601
the  Indian  Penal Code.  Similarly,  the  Constitution,  in
formulating the varying criteria for permissible legislation
imposing restrictions on the fundamental  rights  enumerated
in  article 19 (1), has placed in a distinct category  those
offences  against public order which aim at undermining  the
security  of  the State or overthrowing it, and  made  their
prevention  the sole justification for legislative  abridge-
ment  of freedom of speech and expression, that is  to  say,
nothing  less than endangering the foundations of the  State
or  threatening its overthrow could justify  curtailment  of
the  rights to freedom of speech and expression,  while  the
right  of peaceable assembly "sub-clause (b)" and the  right
of  association  "sub-clause (c)" may  be  restricted  under
clauses  (3)  and  (4) of article 19 in  the  interests  of"
public order," which in those clauses includes the  security
of  the  State.  The  differentiation is also noticeable  in
Entry 3 of List III (Concurrent List) of the Seventh  Sched-
ule, which refers to the "security of a State" and  "mainte-
nance of public order" as distinct subjects  of.legislation.
The  Constitution  thus requires a line to be drawn  in  the
field  of public order or tranquillity marking off, may  be,
roughly,  the boundary between those serious and  aggravated
forms  of public disorder which are calculated  to  endanger
the security of the State and the relatively minor  breaches
of  the peace of a purely local significance,  treating  for
this purpose differences in degree  as if they were  differ-
ences in kind.
    It is also worthy of note that the word "sedition" which
occurred  in article 13 (2) of the Draft  Constitution  pre-
pared   by  the  Drafting  Committee was deleted before  the
article  was  finally. passed as article  19  (2).  In  this
connection  it  may  be recalled that the Federal Court had,
in  defining sedition in Niharendu  Dutt  Majumdar   v.  The
King Emperor (1), held that "the acts or words complained of
must either incite to disorder or must be such as to satisfy
reasonable  men that that is their intention  or  tendency",
but the Privy Council overruled that
[1942] F.C.R. 38.
602
decision  and emphatically reaffirmed the view expressed  in
Tilak's case (1) to the effect that "the offence  "consisted
in  exciting or attempting to excite in others  certain  bad
feelings  towards  the  Government and not  in  exciting  or
attempting  to  excite mutiny or rebellion, or any  sort  of
actual  disturbance, great or small "-King Emperor v.  Sada-
shiv  Narayan  Bhalerao (2) Deletion of the word  "sedition"
from  the  draft  article 13 (2),   therefore,   shows  that
criticism  of Government exciting disaffection or bad  feel-
ings towards it is not to be regarded as a justifying ground
for restricting the freedom of expression and of the  press,
unless it is such as to undermine the security of or tend to
overthrow the State.  It is also significant that the corre-
sponding Irish formula of  "undermining the public order  or
the  authority  of  the State" article 40  (6)  (i)  of  the
Constitution of Eire, [1937] did not apparently find  favour
with  the  framers of the Indian  Constitution.  Thus,  very
narrow  and  stringent limits have been set  to  permissible
legislative  abridgement  of the right of  free  speech  and
expression,  and this was doubtless due to  the  realisation
that  freedom of speech and of the press lay at the  founda-
tion  of  all  democratic organisations,  for  without  free
political  discussion no public education, so essential  for
the  proper functioning of the processes of popular  govern-
ment, is possible. A freedom of such amplitude might involve
risks  of  abuse.  But the framers of the  Constitution  may
well  have  reflected,  with Madison who  was  "the  leading
spirit  in  the preparation of the First  Amendment  of  the
Federal Constitution," that "it is better to leave a few  of
its  noxious  branches to their luxuriant growth,  than,  by
pruning  them away, to injure the vigour of  those  yielding
the proper fruits.": [Quoted in Near v. Minnesotta (3)].
    We are therefore of opinion 'that unless a law restrict-
ing  freedom  of speech and expression  is  directed  solely
against the undermining of the security of the State or  the
overthrow of it, such law cannot fall within the reservation
under clause (2) of article 19, although the
(1)  22 Bom. 112.   (21 L.R. 74, I A. 89.  (8) 282U.S,  607,
717-8.
603
restrictions  which  it seeks to impose may have  been  con-
ceived  generally in the interests of public order. It  fol-
lows  that  section 9 (1-A) which authorises  imposition  of
restrictions for the wider purpose of securing public safety
or  the maintenance of public order falls outside the  scope
of authorised  restrictions under clause (2), and is  there-
fore void and unconstitutional.
    It  was, however, argued that section 9 (1-A) could  not
be  considered  wholly void, as, under article  13  (1),  an
existing  law inconsistent with a fundamental right is  void
only to the extent of the inconsistency and no more.  In  so
far as the securing of the public safety or the  maintenance
of  public order would include the' security of  the  State,
the impugned provision, as applied to  the  latter  purpose,
was  covered  by clause (2) of article 19 and must,  it  was
said, be held to be valid.  We are unable to accede to  this
contention.   Where a law purports to authorise the  imposi-
tion of restrictions on a fundamental right in language wide
enough  to cover restrictions both within and  without   the
limits  of  constitutionally permissible legislative  action
affecting  such right, it is not possible to uphold it  even
so  far as it may be applied within the constitutional  lim-
its, as it is not severable.  So long as the possibility  of
its being applied for purposes not sanctioned by the Consti-
tution  cannot  be ruled out, it must be held to  be  wholly
unconstitutional  and  void. In other words, clause  (2)  of
article 19 having allowed the imposition of restrictions  on
the  freedom  of speech and expression only in  cases  where
danger  to  the State is involved, an  enactment,  which  is
capable of being applied to cases where no such danger could
arise, cannot be held to be constitutional and valid to  any
extent.
    The  application is therefore allowed and the  order  of
the respondents prohibiting the entry and circulation of the
petitioner's  journal  in  the State  of  Madras  is  hereby
quashed.
        FAZL  ALI  J.--For the reasons given by me  in  Brij
Bhushan and Another v. The State(1) , which practically
605.
604
involves  the same question as is involved in this  case,  I
hold  that the reliefs sought by the petitioner  cannot   be
granted.  In this view, I would dismiss this petition, but I
should  like to add a few observations to supplement what  I
have said in the other case.
It appears to me that in the ultimate analysis the  real
question  to be decided in this case is  whether  "disorders
involving menace to the peace and tranquillity of the  Prov-
ince"  and affecting "public safety" will be a matter  which
undermines  the security of the State or not.  I  have  bor-
rowed  the  words  quoted within inverted  commas  from  the
preamble of the Act which shows its scope and necessity  and
the question raised before us attacking the, validity of the
Act  must be formulated in the manner I have  suggested.  If
the  answer to the question is in the affirmative, as      I
think  it  must be, then the impugned  law  which  prohibits
entry into the State of Madras of "any document or class  of
documents"  for  securing public safety and  maintenance  of
public  order should satisfy the requirements laid  down  in
article  19 (2)of the Constitution.  From the trend  of  the
arguments  addressed to us, it would appear that if a  docu-
ment  is seditious, its entry could be  validly  prohibited,
because sedition is a matter  which undermines the  security
of  the  State; but if, on the other hand, the  document  is
calculated to disturb public tranquillity and affect  public
safety,  its  entry  cannot be  prohibited,  because  public
disorder  and  disturbance of public  tranquillity  are  not
matters which undermine the security of the State.  Speaking
for  myself,  I cannot understand this argument.    In  Brij
Bhushan  and  Another v. The State(1), I  have  quoted  good
authority  to  show that sedition owes its  gravity  to  its
tendency  to create disorders and an authority  on  criminal
law  like Sir James Stephen has classed sedition as  an  of-
fence  against public tranquillity.  If so, how could  sedi-
tion  be a matter which would undermine the security of  the
State and public disorders and disturbance of public  safety
will not be such a matter? It was argued that a small   riot
or  an  affray  will not (1) [1950] S.C R, 605.
605
undermine  the  security of the State, but to this  line  of
argument there is a two-fold answer :--
    (1) The Act, as its preamble shows, is not intended  for
petty  disorders but for disorders involving menace  to  the
peace  and tranquillity of the Province, (2) There  are  de-
grees  of  gravity in the offence of sedition  also  and  an
isolated  piece of writing of mildly seditious character  by
one insignificant individual may not also, from the layman's
point of view, be a matter which undermines the security  of
the  State, but that would not affect the law which aims  at
checking  sedition.  It  was also said that the  law  as  it
stands may be misused by the State executive, but misuse  of
the  law  is  one thing and its  being  unconstitutional  is
another. We are here concerned with the latter aspect  only.
I shall not pursue the matter further as I have said  enough
on the subject in the connected case.
 Petition allowed.
Agent for the petitioner:--K. J. Kale.
Agent for the opposite party :--P. A. Mehta.
PETITIONER:
DR. N.B. KHARE
        Vs.
RESPONDENT:
THE STATE OF DELHI
DATE OF JUDGMENT:
26/05/1950
BENCH:
KANIA, HIRALAL J. (CJ)
BENCH:
KANIA, HIRALAL J. (CJ)
FAZAL ALI, SAIYID
SASTRI, M. PATANJALI
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
CITATION:
 1950 AIR  211            1950 SCR  519
 CITATOR INFO :
 R          1952 SC  75  (15)
 D          1952 SC 196  (15,17,18)
 R          1956 SC 559  (8)
 R          1957 SC 510  (15)
RF         1957 SC 896  (11,13)
 E          1958 SC 578  (169)
 R          1959 SC 459  (48)
 R          1962 SC1371  (35)
 RF         1964 SC1279  (6)
 R          1968 SC 445  (14)
 R          1971 SC1667  (27)
 RF         1973 SC1461  (242,451)
 R          1974 SC 175  (14)
 R          1974 SC1044  (24)
 R          1975 SC2299  (485)
 R          1978 SC 851  (24)
 RF         1979 SC  25  (31)
 R          1980 SC1382  (81)
ACT:
    Constitution  of  India, Art. 19, cls. (1) (d)  and  (5)
Fundamental  rights--Freedom of movement--Law  imposing  re-
strictions-Validity--Reasonableness   trictions--Scope    of
enquiry--East  Punjab Public Safety Act, 1949, s. 4  (1)(c),
(3),  (6)--Provisions  empowering Provincial  Government  or
District Magistrate to extern persons making satisfaction of
externing authority final, authorising externment for indef-
inite period, and directing that authority "may communicate"
grounds of externment--Whether reasonable--Construction  and
Validity of Act.
67
520
HEADNOTE:
    Section  4,  sub-s. (1) (c), of the East  Punjab  Public
Safety Act of 1949 which was passed on the 29th March, 1949,
and was to be in force until the 14th August, 1951, provided
that "The Provincial Government or the District  Magistrate,
if satisfied with respect to any particular person that with
view to preventing him from acting in any manner prejudicial
to  the public safety or the maintenance of public order  it
is  necessary  to do so, may, by order in  writing,  give  a
direction  that such person shall remove himself  from,  and
shall  not return to, any area that may be specified in  the
order."   Sub-section  (3) of s. 4 provided that  "an  order
under sub-s. (1) made by the District Magistrate shall  not,
unless  the Provincial Goverment by special order  otherwise
directs, remain in force for more than three months from the
making  thereof,"  and sub-s. (6) laid down  that  "when  an
order  has been made in respect of any person under  any  of
the  clauses  under  s. 4, sub-s. (1) or  sub-s.  (9.),  the
grounds  of it may be communicated to him by  the  authority
making the order, and in any case when the order is to be in
force  for more then three months, he shall have a right  of
making  a  representation which shall be  referred   to  the
Advisory  Tribunal  constituted  under  s. 3,  sub-s.  (4)."
The  petitioner,  against  whom an order under  (1)  (c)  of
the  Act was passed applied to the Court under Art.  39,  of
the  Constitution for a writ of certiorari  contending  that
the  order  was illegal inasmuch as the  provisions  of  the
above mentioned Act under which the order was made infringed
the fundamental right to move freely throughout the territo-
ry  of India which was guaranteed by Art. 19 (1) (d) of  the
Constitution and were accordingly void under Art. 13 (1)  of
the Constitution:
    Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.
(MAHAJAN and MUKHERJEA, JJ. dissenting)--(i) that there  was
nothing  unreasonable in the provision contained  in  sub-s.
(1)  (c)  empowering the Provincial Government or  the  Dis-
trict  Magistrate  to make an externment order,  and  making
their  satisfaction  as to the necessity of making  such  an
order final, or in the provisions contained in sub-s. (3) of
s.  4 that an order of a District Magistrate may  remain  in
force  for three months and that the  Provincial  Government
may make an order, or keep alive an order made by a District
Magistrate,  for  a period exceeding  three  months  without
fixing  any time limit; (ii) with regard to sub-s. (6),  the
word "may" in the expression "may communicate" must, in  the
context,  be read as meaning "shall" and under the  sub-sec-
tion  it is obligatory on the authority making an  order  to
communicate the grounds to the externee;.(iii) the  restric-
tions  imposed by the above-mentioned provisions of the  Act
upon  the fundamental right guaranteed by Art. (19) (1)  (d)
were  not, therefore, unreasonable restrictions  within  the
meaning  01 Art. 19 (5) and the provisions of the  Act  were
not void under Art. 13 (1), and the order of externment  was
not illegal.
    Per   MUKHERJEA  J.   (MAHAJAN  J.   concurring)--Though
certain  authorities   can  be  invested   with   power   to
make
521
initial  orders on their own satisfaction in cases  of  this
description,  and  s. 4 (1) (c) of the  East  punjab  Public
Safety  Act cannot be pronounced to be unreasonable   simply
because  an order  I could be passed by the Provincial  Gov-
ernment  or the District Magistrate  on their  own  personal
satisfaction  and not on  materials, which  satisfy  certain
objective tests, yet, the position would be different if the
order  thus made is allowed to continue for  any  indefinite
period of time without giving the aggrieved person an oppor-
tunity to say what he has got to say against the order;  and
inasmuch  as sub-s. (3) of s. 4 prescribes no limit  to  the
period of time during which an externment order would remain
in force if it is made by the Provincial Government, and the
Provincial  Government is also given power to keep an  order
made  by  a District Magistrate in force for  an  indefinite
period,  the provisions of sub-s. (3) are manifestly  unrea-
sonable.   The  provisions  of sub-s. (6)of s.  4  are  also
unreasonable  as  they make it entirely  optional  with  the
authorities  to  communicate  to the  person  affected,  the
grounds upon which the order is made. Neither sub-s. (3) nor
sub-s.  (6) of s. 4 can, therefore, be said to have  imposed
restrictions  which are reasonable in the interests  of  the
general  public within the meaning of Art. 19 (5) and  these
provisions of the Act were consequently void and inoperative
under  Art.  13 (1)of the Constitution, and  the  externment
order was illegal.
    Held also, per KANIA C.J.,  FAZL ALI, MAHAJAN and  MUKH-
ERJEA JJ.--Whether the restrictions imposed by a legislative
enactment  upon the fundamental right guaranteed by Art.  19
(1) (d) are reasonable within the meaning of Art. 19 (5)  of
the  Constitution  would depend as much  on  the  procedural
portion  of  the law as the substantive part of it]  and  in
considering  whether  such restrictions are  reasonable  the
Court is not therefore bound to confine itself to an  exami-
nation  of  the reasonableness of the  restrictions  in  the
abstract  with reference to their duration  and  territorial
extent.   The Court can also consider the reasonableness  of