SANTOKH SINGH

DELHI ADMINISTRATION February 20, 1973

[A. ALAGIRISWAMJ, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J

Constitutwn of India, Article l9(l)(a)-Punjab Security of State Act (No. 12 of 1953)-Sec. 9 whether violates Article 19(1)(a)- Speech or statement which "tends to over throw the State"-whether restriction unreasonable-Constitution of India, Art. 136-Appeal by Speciui leave on a pure queStion of law effecting constitutional validity of

an Act-lvhether can be raised for first time in Supreme Court-Scope of appeal lln special [eave-whether apper/ant can claini adjudicction on n1crits as of right.

The appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited th• defence employees to commit offences prejud'icial to security of the State or to the maintenance of public order. Sec. 9 of the Act prohibits speeches or staten1ents etc, which have effect of undermining the security of the State, friendly .relations with foreign States, public order decency or morality or which am, ount to contempt of court, defamation or incitenlent to an offence prejudicial to the security of th~ State or the maintenance of public order or Wlhich tends to over throw the State._ On perusal of the documents filed u/s. 173 of the Cr.P.C., the Magistrale came to the conclusion that the prima facie case was established.

The appellant unuccessfuJiy challenged the said 1nter-locutory order before the Sessions Court and then in th~ High Court.

On appeal by special leave, the appellant raised the questio.o of constitutional validity of Sec. 9 of the ,\ct. The appellant contended: (i) that Sec. 9 of the Punjab Security of State Act waSI violative of the fundamental right guaranteed under Art. 19(1) (a) of the Constitution, and (ii) in the altern11tive, thE ope'ration of Sec. I) should be limited only to suc}1 matters as involve incitement to violence or intention or tendency to create publi~ disorder or cause disturbance tc> public peace.

Jn di!'- missing the appeal.

HELD : (i) Except the words "tends to o\er throw the State" the rest of the provisions of Section 9 rep<oduce the provisions of Art. 19(2) of the Constitution. The prohibition relating to offending speech, wod!s or the . other publications wbic!) tend to over throw the State clearly fall within the sweep of the expression "incitemeiit to an offence prejudicial to the security of the State". Restriction, therefore, is prima facie reasonable restriction. rs37 C-El

. Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia 11962] 2 S.C.R. 321, distinguished on facts.

(ii) Reasonable restrictions in respect of matters specified in Art. 1?(2). are essential for integrated development on egalitarian. progres- OJve lines of any peace lovin~ civilised society. Art. 19(2) thus save• the constitutional validity of Sec. 9 of the Act. The analogy between s: 124( I) !PC and Sec. 9 of the Act is wholly misoonceived and in vrew of he comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot be . retncted to those speeches and expressions which ir.cite or tend to mc1te viclence only.

Sec. 9 cannot be interpreted in a restricted 2-L 761 SuPCl/73 .

manner Sec'. 124( 1) IPC was interpreted in Kedarnath Singh v. State of A Bihar r.1966 Supp, 2 S.C.R. 7691. [539 A-Cl

(iii) 'fhc Supreme Court may allow the question of law elf~ the constitutional validity of an Act for the first ti~ to be k"aised in Supreme Court.

In an appeal by special leave under Art. 136 of the Constitution, the scope of the '-.ippeal is not enlarged after leave and the appellant cannot as of right claim adjudicaticm on merits.

The B Court would not pronounce its opinion on the merits of the charge framed against the appellant.

[540 C-E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 197 of 1972.

Appeal by special leave from the judgment and order dated 24th day of February 1972, of the Delhi High Court in Cr. Rev. c No. 469 of 1970.

S. C. Agarwala and A. K. Gupta for the appellant.

D. P. Bhandari and R. N. Sachthey, for the respondent.

The Judgment of the Court was delivered by

DuA, J.

This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court of Delhi dated February 24, 1972 rejecting the appellant's revision petition under ss. 430 and 561-A of the Code of Criminal Procedure. In that revision he had prayed that the charge franwd

against him by a Magistrate, First Cl'ass, New Delhi on July 3,

1969 under s. 9 of the Punjab Security of State Act (Punjab Act no. 12), 1953 (hereinafter called the Act) be quashed. The special leave petition originally came up for preliminary hearing before a bench of this Court on August 18, 1972 when notice to show cause was issued. On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner's counsel to file a writ petition. It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on uwal terms. The appeal was also directed to be heard on the existing paper book with liberty tb the parties to file such additionaJI documents as they wished to file from the record. The appeal was directed to be_listed for hearing in the second week of Januar:y,

1973. Sometime in January, 1973 the aopellarit presented criminal miscellaneous petition no. 32 of 1973 seeking permission to urge additional grounds. In that application the constitutional validity of s. 9 of the Act was questioned. The said section, according to the averment in that petition, infringes the fundamentjd right of speech guaranteed under Art. 19(1)(a) of the ConsQ. tution.

It is alleged by the prorecution that the aooe!lant had addressed a public' meeting of the employees of the Defence Department on

A October 9, 1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State or to the maintenance of public order. The Magistrate had, on perusal of the documents filed under s. 1973, Cr. P.C. framed a charge against the appellant punishable under s. 9 of the Act.

According to the judgment of the High Court the offending por- B tion of the speech which had been delivered in Hindi reads as follows :

"There will be hunger strike at Chavan Sahib's kothi No. 1 Race Course Road.

If Chavan Sahib thinks that they will be"in position to .crush us with the assistance of C.R.P. and B.S.F. then that is his misunderstanding.

Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out. Because these children of military and police personnels are also hungry they also require bread for eating. Therefore, the day has to come when after their unity these workers will send you out. Comrades the Government suffered the moral death when it promulgated the ordinance. Because we had no idea of starting any violance, when we demanded bread, clothes and house. This struggle of ours will continue. If Government servants die then other labourers will take this struggle ahead. One thing more I want to tell you that if there will be no celebration of Diwali in the house of our .fifty thousand people, then there shall be darkness in the houses of these ministers. I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not let you live as U dham Singh killed Dyre after going to London .

Annexures I and II attached to the petition under Art. 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which the charge sheet had been filed in court contained a couple of more sentences which do appear to be of some importance. But we consider it unnecessary for our-present purposes to refer to them.

The High Court considered the part of the speech reproduced

above and after referring to the decisions of this Court in Srate of Bihar v. Shrimati Shailba/a Devi('), Ram Manolwr Lohia v. State of Bihar(') and Sudhir Kumar Saha v. The Commissioner of Police(') dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under s. 9 of the Act. It was, however. added that it was open to the petitioner either by cross-examination of the prosecution

(1) A.l.R. 1952 S.C. 320.

(21 A.T.R. 1966 S.C. 740.

(3) [19701 I S.C.C. 149.

(1973] 3 S, C.R.

witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order. The High Court felt that at that stage it could not be_ said that there was no prima facie case against the petitioner under s. 9 of the Act.

In this Court Shri S. C. Agarwal questioned the vires of s. 9 of the Act, contending tijat this section is violative of the fundamental right guaranteed by Art. 10 (I)( a) Of the Constitution.

No doubt, this point was not raised in the High Court and in this Court also it was specifica!Iy sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in/question was itself 5ought in para 5 of the petition for special leave to be protected , by Art. 19 (I) (a) and as it was a pure question! of law raising the constitutionality of s. 9 of the Act we permitted the counsel to raise it.

Section .9 of the Act reads :

'9. Dissemination of rumours, etc.- Whoever

(a) makes any speech, or

(b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or moraljty, .. QJ: amounts to contempt of , Court, defamation or incitement to an offence prejiidicial tq the security of the State

or the maintenance Of public order, or tends to overthrow the !?tate, be punislfaple with impri!IO'ninent which may extend to three years dr with fine or with both." This section on its own plain Ieiding• taken within its fo(d all the objectionable matters which had been taken by sub-Art. (2) of Art. 19 out of the guaranteed freedom of speech and expression protected by cl. (a) of Art. 19(1). In order to fully understand f!ie f; e7®m of speech and expression guaranteed by the Constitution 1t 1s necessary to reproduce Art. 19(l)(a) and (2) :- Right to Freedom 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, or prevent the

'! •

"' '

State from making any Jaw, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the soverQignty and integrity of India, the security of the State, friendly rel!ltions with foreign st!!tes, public order, de.- oency or morality, or in relation to contempt of court, defamation or incitement to an offonce".

It may appropriately be.pointed out here that sub-Art. (2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India. This !imitation was not in this sub-Article in 1953 but as it does not affect the question raised in this case we need say notlting more about it.

Reading s. 9 of the Act and Art. 19 ( 2) of the Constitution it is obvious that the only matter specifically contained in s. 9 in addition to those stated in Art. 19(2) relate to the offendinr, speech, words or other publications which ''.tends to overthrow the State". Now this matter would clearl1 also fall within the sweep of the expression "incitement to an offence. prejudicial to the security of the State" contained ins. 9 and within Art. 19(2) where it speaks of "reasonable restrictions .... in the interest of. . . . the security of the State". Anything tending to overthrow the State lmliSt necessarily be prejudicial to the security of the State and. therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State. Prima facie, therefoi:e, s. 9 clearly falls within the express language of Art. 19 ( 2) .

On behalf of the appellant great stress was laid on Superilllendent of Central Jail, Fatehgarh v. Ram Manohar Lohia(1) where ihis Court struck down as unconstitutional s. 3 of the U.P. Special F Powers Act (U.P. Act 14 of 1932). That section reads:

"3. Whoever by word, either spoken or written or by signs or by visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of ani liability,

nd whoever does any a7t with intent or.knowing it to be likely. tat any w<;>rd~, Sls or visible reprntation> contammg such mstigation shall thereby be communicated directly or indirectly to any person or class of

prsos, iry. any manne.r whatsoever, shall be punishable with imprisonment which mav extend to si1C months or with fine, extending to Rs. 250, or with both." '

On the face of its plain language this section is materially different from s. 9 of the Act. It therefore does nor require elaborate argu-

{1) [1962] 2 S.C.R. 321.

538 SUPllEME C()UllT llEPOllTS (1973] 3 S.C.ll.

ment for distinguishing this decision. _Sec!ion 3 of the U.P. ct is clearly hit by Art. 19(1) (a) and can on no reasonable or rational

argument be saved by Art. 19(2). There being absolute!y no 1similarity between that section and s. 9 of the Act with whi.c.h we are concerned, the ratio of that decision cannot serve as a precedent for invalidating s. 9 Of the Act. The appellant's learned counsel then drew our attention to Kedarnath Singh v. State of bihar (1) in which ss. 12A and 505, I.P.C. were held to be in the interest of public order and within the almbit of constitutional limitations contemplated by Art. 19(1) (a) rell!l with Art. 19(2). On

!f; hQ analogy of s. 124A as construed in decision it was contended that in order to bring s. 9 of the Act within the constitutional limits of Art. 19(2) it must similarly be construed narrowly so that the fundamental freedom of speech and eXpression is not unduly, restricted. The operation of s. 9 of the Act, it was submitted, should be limited only to such matters as involve incitei; nent

to violence or intention or tendency to create public disorder or . cause !disturbance of public peace.

The fundamental right guai:anteed by Art. 19( 1) (a) and the interest of public order protected by Art. 19(2) according to Shri Agarwal's submission. must be !properly adjusted and a correct balance struck between two.

Jn our opinion, the principle governing the construction of Art. 19(1)(a) read with Art. 19(2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole ground over again by going through them extensively,

We of course agree with Shri Agarwal that the fundamentar right guaranteed by Art. ~9( 1) (a) and the interest of public protected by Art. 79(2) must be properly adjusted and reasonable balancd struck between the two. There can be no dispute that there is no such thing as absolute or unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy. The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic. Our governmental set up being elected, limited and: responsible "".e need requisite freedom of animadversion, for our social interest ordinar\ly demands free propagation of views. Free-·

dom. to think as one likes. and to speak as one thinks are as a ru,1e, indisjiensable to the discovery and soread of truth and' wit.bout 11ree s.l>eech discussion may well be futile. But at the same' . time we can only ignore at our peril the vital importance of our

social interest in, inter alia, public order and security of our State.

It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social inrn [19661 Supp. 2 S.C.R. 769.

t '

terests. It has permitted imposition of reasonable tri_ctions m the citizen's right of freedom of speech and expression_ m the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger coUective inerest Of the nation as a whole. Reasonable restriction in respect of matters specified in Art. 19(2) are essential for integrated development on egalitarian, progressive lines of any peace-loving, civilised s0ciety. Article 19(2) thus saves the constitutional validity of s. 9 of the Act. The analogy between s. 124A, l.P.C. and s. 9 of the Act is wholly misconceived and in view of the comprehensive

sweep of Art. 19(2) we are unable to restricts. 9 of the Act only tp ltliose shes and expressions which incite or te, nd to incite violence. ' Learned counsel also tried to refer us to some American decisions for developing the argumnt that the guaranteed freedom of speech and expressiop. should be broadly construed buf we 'did not . consider it necessary to go into the American decisions, notwith-. standing the fact that in Express Newspapers (P.) Ltd, v. Union D of l11dia(') it was observed that .American decisions were relevant for the purpose of understanding the scope of Art. 19(1) (a). In our opinion, it is hardly fruitful to refer to the American decisions particularly when this Court has more than once clearly enunciated the scope and effect of Art. 19(1)(a) and 19(2). The test of reasonableness of the restriction has to be considered in each case gin the light of .the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed and the prevailing social and other conditions at the time. There can be no .abstract standard '1r general pattern of reasonableness. Our Constitution provides reasonably precise, general guidance in this matter. It would thus be misleading to F construe it in the light of American decisions given in different bontext. (Section 9 of the Act is, in our view, plainly within the le!tlslative competence of th~ Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant's_ speech is covered by this section.

Shri Agarwal made a strenuous effort to persuade us to cons- . true the offending portion of the speech as reproduced in the judglllllnt of the High Court and express our opinion whethee or not the charge against him has been lawfully framed. The charge reads as under :

"That you. on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak in the area of Delhi Cantt. made a speech at a public meeting organised by Delhi Defence employees in which you

(I) [1959] S.C.R. 12.

demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable under section 9 of the P.S. Act and within my cognizance." The appellant, it may be pointed out, had approached the sessions Court on revision to .have this charge quashed.

That court apparently did not agree with the appellant.

He then approached the High Court on revision where also he failed.

Th_~ impugned judgment of the High Court does not .show any serious legal infirmity resulting in failure of justice which should induce this Court to interfere under Art. 136 of the Constitution. The submission that at this Court has already granted special leave we must decide the question of the legality of the charge on the merits has not appealed to us.

Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage when the leave to appeal is asked. for. After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right diiim adjudication on the merits if this Court feels .that there is no grave injustice done to the appellant as a result of any serious legal infirmity.

We are unable to find any such infirmity in the impugned judgment. The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed.

We have, however, no doubt that the learned Magistrate trying the appellant's case will deal with all the points raised before him O!.J the merits without being iciluenced by the tentative view expressed by the High Court which the appelfant himself invited.

We also hope that . this case which relates to a peech said to have been delivered in October, 1968 and in which the prosecution was initiated as far back as January, 1969 when the charge was put into-court, would be disposed of with due dispatch and without avoidable delay. This appeal fails and is dismissed.

S.B.W.

Appeal dismissed.