Brij Bhushan & ANR Vs. The State of
Delhi [1950] INSC 15 (26 May 1950)
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 publication 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 Constitution 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 general, show that preservation of public safety is
the dominant purpose of the Act, and "public order" may well be paraphrased
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 impugned 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-censorship 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). Blackstone's Commentaries referred to.
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 petitioner.
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 delivered by
Patanjali Sastri J.
Fazl Ali J. delivered a separate dissenting
judgment, 607 PATANJALI SASTRI J.--This is an application under article 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 publishing
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 Superintendent of Press Branch
at his office at 5, Alipur Road, Civil Lines, Delhi, between the hours 10 a.m.
and 5 p.m. on working days." The only point argued before us relates to
the constitutional 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 necessary 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 printer, 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 Constitution inasmuch as it authorises the
imposition of a restriction on the publication of the journal which is not
justified under clause (2) of that article.
There can be little doubt that the imposition
of precensorship 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 Commissioner, 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 necessary 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 printer, 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
connected 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 prohibition
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 expression 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 undermines 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 Constitution, 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 section 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 regulations
...... for securing the public safety and the defence 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 attention 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 designated 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 farreaching 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 insignificant
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 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 interchangeably 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 tranquillity."
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 practically 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 disorder, 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
criminal 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 Emperor 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 tranquillity and was connected in some way or other
with public disorder; and, on the other hand, there was the pronouncement of
the Judicial Committee that sedition as defined in the Indian Penal Code did
not necessarily imply any intention 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 sedition 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 subversion 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 insurrections of
this sort, ordinary riots, and unlawful assemblies. 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 utterances,
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 authoritative
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 Parliament 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 expression is one
of the most valuable rights guaranteed to a citizen by the Constitution and
should be jealously guarded 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
prescribed 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
prejudicial 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.
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