Virendra Vs. The State of Punjab &
ANR [1957] INSC 63 (6 September 1957)
DAS, SUDHI RANJAN (CJ) AIYYAR, T.L.
VENKATARAMA SINHA, BHUVNESHWAR P.
KAPUR, J.L.
SARKAR, A.K.
CITATION: 1957 AIR 896 1958 SCR 308
ACT:
Press Control-Notification issued by State
Government on daily newspaper-Prohibition against Publication of a Particular
matter--Prohibition against entry into the State- Restrictions, if
reasonable--If violative of fundamental right of freedom of speech and expression
and right to carry on trade or business-The Punjab Special Powers (Press) Act,
1956 (No. 38 of 1956), SS. 2, 3-The Constitution of India, Arts. 19(1)(a),
19(1)(g), 19(2), 19(6).
HEADNOTE:
These two petitions challenged the
constitutional validity of the Punjab Special Powers (Press) Act, 1956 (No. 38
of 1956) passed by the State Legislature in the wake of the serious communal
tension that had arisen between the Hindus and the Akali Sikhs over the
question of the partition of the State on a linguistic and communal basis. The
petitioners were the editors, printers and publishers, respectively, of the two
daily newspapers, Pratap and Vir Arjun, printed and published simultaneously
from jullundur and New Delhi, whose admitted policy was to support the "Save
Hindi agitation". Two notifications under S. 2(1)(a) of the impugned Act
were issued against the editor, printer and publisher of the two papers
published from Jullundur by the Home Secretary prohibiting him from printing
and publishing any matter relating to the 'Save Hindi agitation' in the two
papers for a period of two months. Two other notifications in identical terms
were issued under s. 3(1) of the impugned Act against the other petitioner, the
editor, printer and publisher of the two papers in New Delhi prohibiting him
from bringing into the Punjab the newspapers printed and published in. New
Delhi from the date of the publication of the notifications. Unlike S. 2(1) of
the impugned Act which provided a time-limit for the operation of an order made
thereunder as also for a representation to be made by the aggrieved person, s.
3 of the Act made no such provision. It was contended on behalf of the
petitioners that both the sections were ultra vires the State Legislature
inasmuch as they infringed Arts. 19(1)(a) and 19(1)(g) of the Constitution and
were not saved by Arts. 19(2) and 19(6) of the Constitution. It was urged that
the sections imposed not merely restrictions but a total prohibition against
the exercise of the said fundamental rights by prohibiting the publication of
all matters relating to the 'Save Hindi agitation' under S. 2(1)(a) and by a
complete prohibition of the entry of the two papers into the whole of the
Punjab under s. 3(1) of the Act, that even supposing 309 that the sections merely
imposed restrictions and not a total prohibition, the restrictions were not
reasonable, that the sections gave unfettered and uncontrolled discretion to
the State Government and its delegate, that the Act did not provide for any
safeguard against an abuse of the power, that the language of the sections
being wide enough to cover restrictions both within and cut side the limits of
constitutionally permissible legislative action they were ultra vires the
Constitution and that the notification under S. 2(1)(a) of the Act as made
would prevent even the publication of anything against the 'Save Hindi
agitation' and should have been restricted to such matters alone as were likely
to prejudicially affect the public order.
Held, that the restrictions imposed by S.
2(1)(a) of the impugned Act were reasonable restrictions within the meaning of
Art. 19(2) of the Constitution and the petition directed against the
notifications issued there under must fail, but since s. 3 Of the Act did not
provide for any time limit for the operation of an order made there under nor
for a representation by the aggrieved party to the State Government, the
restrictions imposed by it were not reasonable restrictions under Art. 19(6) of
the Constitution and the petition directed against the notifications made there
under must succeed.
Held further, that there can be no doubt that
the right of freedom of speech and expression carries with it the right to
propagate one's views and the several rights of freedom guaranteed by Art.
19(1) of the Constitution are exercisable throughout India but whether or not
any restrictions put on those rights amount to a total prohibition of the
exercise of such rights must be judged by reference to their ambit.
So judged, the restrictions imposed in the
instant cases with regard to the publications relating to only one topic and
the circulation of the papers only in a particular territory could not amount
to a total prohibition of the exercise of the fundamental rights. The
expression "in the interest of" in Arts. 19(2) and 19(6) of the
Constitution makes the protection they afford very wide and although free
propagation and interchange of views are ordinarily in social interest,
circumstances may arise when social interest in public order is greater and the
imposition of reasonable restrictions on the freedom of speech and expression
and on the freedom of carrying on trade or business becomes imperative. Regard
being had to the surrounding circumstances in which the impugned Act was
passed, its object, the extent and urgency of the evil it sought to remedy, and
the enormous power wielded by the Press, with modern facilities of quick
circulation, and the consequence that any abuse of it might lead to, the
restrictions imposed by the impugned Act must be held to be reasonable
restrictions under the Articles.
The State of Madras v. V. G. Row, (1952)
S.C.R. 597, followed.
310 It was only in the fitness of things that
the State Legislature should have left the wide preventive powers under the
sections to the discretion of the State Government, charged with the
maintenance of law and order, or to its delegate, to be exercised on their
subjective satisfaction. To make the exercise of these powers justiciable and
subject to judicial scrutiny would be to defeat the purpose of the enactment.
Dr. N. B. Khare v. The State of Delhi, (1950)
S.C.R. 519, referred to.
But such discretion was by no means
unfettered and uncontrolled. The two sections laid down the principle that the
State Government or its delegate could exercise such powers only if they were
satisfied that such exercise was necessary for the purpose mentioned in the
sections and not otherwise. Where there was any abuse of such powers,
therefore, what could be struck down was the abuse itself but not the statute.
Dwaraka Prasad Laxmi Nayain v. The State of
Uttar Pradesh, (1954) S.C.R. 803, held inapplicable.
Harishankar Bagla v. The State of Madhya
Pradesh, (1955) 1 S.C.R. 380, relied on.
In view of the amended provisions of Art.
19(2) of the Constitution and the language of the two sections limiting the
exercise of the powers to the purposes specifically mentioned therein, the
principles enunciated by this Court in Ramesh Thappay's case and applied to
Chintaman Rao's case could have no application to the instant cases.
Ramesh Thappay v. The State of Madras, (1950)
S.C.R. 594 and Chintaman Rao v. The State of Madhya Pradesh, (1950) S.C. R. 759,
held inapplicable.
The two provisos to s. 2(1)(a) and cl. (b) of
S. 2(1) clearly show that the restrictions imposed by s. 2 are reasonable
restrictions on the exercise of the rights guaranteed by Arts. 19(1)(a) and
19(1)(g) and are, therefore, protected by Arts. 9(2) and 19(6) of the
Constitution.
There could be no basis for the grievance
that the notifica- tion under s. 2(1)(a) prevented the publication even of
matters against the 'Save Hindi agitation'. If there was a change in the policy
of the papers, the time-limit provided for the operation of the notifications
and the right to make a representation provided ample remedies for the
petitioner.
To introduce into the notifications the
suggested qualification would be to make the exercise of the powers conferred
by the section dependent on an objective test subject to judicial scrutiny and
defeat the very purpose of the section.
CIVIL APPELLATE JURISDICTION: Petitions Nos,
95 and 96 of 1957.
311 Petitions under Article 32 of the
Constitution of India for the enforcement of Fundamental Rights.
N. C. Chatterjee, Charan Das Puri and Naunit
Lal, for the petitioners (in both the petitions).
C. K. Daphtary, Solicitor-General of India,
Lachman Das Kaushal, Deputy Advocate-General for the State of Punjab and T. M.
Sen, for the respondents.
1957. September 6. The following Judgment of
the Court was delivered by DAS C.J.-In these two petitions under Art. 32 of the
Constitution of India the petitioners call in question the validity of the
Punjab Special Powers (Press) Act, 1956 (being Act No. 38 of 1956), hereinafter
referred to as " the impugned Act ", and pray for an appropriate writ
or order directing the respondents to withdraw the Notifications issued by them
on the two petitioners as the editors, printers and publishers of two
newspapers, Pratap and Vir Arjun.
The Daily Pratap was started about 38 years
back in Lahore, the capital of the united Punjab. It is a daily newspaper
printed in the Urdu language and ,script. Since the partition of the country
the Daily Pratap is being published simultaneously from Jullundur and from New
Delhi Vir Arjun is a Hindi daily newspaper also published simultaneously from
Jullundur and from New Delhi. Virendra, the petitioner, in Petition No. 95 of
1957 is the editor, printer and publisher of the two papers published from
Jullundur and K. Narendra is the editor, printer and publisher of the two
papers published from New Delhi.
The petitioners allege that after the
appointment of the States Reorganisation Commission on December 29, 1953, the
Akali party in the Punjab started a campaign for the partition of the State of
Punjab on communal and linguistic basis. According to the petitioners this
agitation soon degenerated into a campaign of hatred which threatened the peace
of the State. The petitioners maintain that the Hindu inhabitants of the State
belonging to all shades of opinion and also a section of the Sikh community and
312 the Congress Party were strongly opposed to that proposal.
It is in the circumstances reasonable to
infer that the Hindus would also indulge in a counter propaganda in the Press
and from the platform against the agitation started by the Akali party. It is
admitted that the policy of these two papers, the Daily Pratap and Vir Arjun,
has been to oppose the Akali demand for partition of the State of Punjab.
Obviously a good deal of tension was generated in the State by reason of the
two bitterly opposing parties trying to propagate their respective ideologies.
About a year back the Congress Party, which is the ruling party, is said to
have surrendered to the communal pressure of the Akalies and accepted what has
since come to be known as the regional formula. It was amidst the din and
bustle of this ideological war and to prevent and combat any possible activity
prejudicial to the maintenance of communal harmony that the Legislature of the
State of Punjab found it necessary to pass the impugned Act which received the
assent of the President on October 19, 1956, and came into force on the 25th of
the same month.
The provisions of the impugned - Act, in so
far as they are material, may now be referred to. Section 2 (1) (a) runs as
follows:
" 2(1) The State Government or any
authority so authorised in this behalf if satisfied that such action is
necessary for the purpose of preventing or combating any activity prejudicial
to the maintenance of communal harmony affecting or likely to affect public
order, may, by order in writing addressed to a printer publisher or editor,-
(a) prohibit the printing or publication in any document or any class of
documents of any matter relating to a particular subject or class of subjects
for a specified period or in a particular issue or issues of a newspaper or
periodical;
Provided that no such order shall remain in
force for more than two months from the making thereof;
Provided further that the person against whom
the order has been made may within ten days of the 313 passing of this order
make a representation to the State Government which may on consideration
thereof modify, confirm or rescind the order;" Section 2(1)(b) authorises
the State Government or any authority so authorised in this behalf to require
that any matter covering not more than two columns be published in any
particular issue or issues of a newspaper or periodical on payment of adequate
remuneration and to specify the period (not exceeding one week) during which
and the manner in which such publication shall take place. Clause (c) of s.
2(1) authorises the State Government or the delegated authority to impose
pre-censorship. Sub-section (2) of s. 2 enables the State Government or the
authority issuing the order in the event of any disobedience of an order made
under s. 2 to order the seizure of all copies of any publication and of the
printing press or other instrument or apparatus used in the publication.
Section 3(1) runs as follows:
" The State 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 prejudical to the
maintenance of communal harmony affecting or likely to affect public order,
may, by notification, prohibit the bringing into Punjab of any newspaper,
periodical, leaflet or other publication." Sub-section (2) of s. 3 gives
power to the State Government or the authority issuing the order, in the event
of any disobedience of an order made under s. 3, to order the seizure of all
copies of any newspaper, periodical, leaflet or other publication concerned.
Section 4 provides punishment for the contravention of any of the provisions of
the Act by imprisonment of either description which may extend to one year or
with fine up to one thousand rupees or with both.
It appears that on or about May 30, 1957, a
movement known as the "save Hindi agitation " was started by a Samiti
which goes by the name of Hindi Raksha Samiti. The Arya Samaj, which claims to
be a cultural and religious society, joined this campaign 314 for changing what
they conceive to be the objectionable features of the regional formula and the
Sachar formula on language. According to the petitioners the Hindi Raksha
Samiti, the sponsor of the " save Hindi agitation " claims that it
has the support of practically all sections of the Hindus of the State. The
petitioners who are the editors, printers and publishers of the two newspapers
published simultaneously from Jullunder and New Delhi respectively consider
that the objectionable clauses of those formulae are not only unjust and unfair
to the cause of propagating that national language in the country, but are also
a contrivance to secure the political domination of the minority community over
the majority. Admittedly the petitioners have been publishing criticisms and
news concerning the agitation which, according to them, are quite fair and
legitimate, but they allege that newspapers like Prabhat and Ajit, which
support the Akali party in the State have been publishing articles and news
couched in a strong and violent language against the " save Hindi
agitation " and the Hindu community. The agitation apparently followed the
usual course and pattern of all political agitation of this kind with its attendant
demonstrations, slogans and satyagraha by the volunteers and lathi charge by
the police.
Eventually on July 10, 1957, the agitation
culminated in the " save Hindi agitation " volunteers' forcible entry
into the Secretariat of the Punjab Government at Chandigarh. It was in these
circumstances that the four Notifications complained of were issued.
On July 13, 1957, a Notification under s.
2(1)(a) of the impugned Act was issued against the petitioner Virendra, as the
editor, printer and publisher of the Daily Pratap published from Jullundar. It
was in the following terms:
" Whereas 1, Ranbir Singh, Home
Secretary, Punjab Government, authorised by the said Government under section
2(1) of the Punjab Special Powers (Press) Act, 1956, on examination of the
publications enumerated in the annexure relating to the " save Hindi
agitation " have satisfied myself that action is 315 necessary for
combating the calculated and persistent propaganda carried on in the newspaper
the Pratap' published at Jullundar to disturb communal harmony in the State of
Punjab;
And whereas the said propaganda by making an
appeal to communal sentiments has created a situation which is likely to affect
public order and tranquillity in the State ;
And therefore in pursuance of the powers
conferred under sub-clause (a) of clause (1) of section 2 of the said Act, 1
prohibit Shri Virendra, the printer, publisher and the editor of 'Pratap' from
printing and publishing any article, report, news item, letter or any other
material of any character whatso ever relating to or connected with "save
Hindi agitation" for a period of two months from this date.
Sd./ Rome Secretary to Government Punjab.
No: 8472-C(H) 57/14679 " The annexure
referred to in the Notifications sets out the headings of fifteen several
articles published in this paper between May 30, 1957, to July 8, 1957. Another
Notification in identical terms with an annexure setting forth the heading of
sixteen articles published during the same period in Vir Arjun was issued on
the same day against Virendra as the editor, printer and publisher of Vir Arjun
published from Jullundar.
On July 14, 1957, two Notifications in
identical terms were issued under s. 3 of the impugned Act against K. Narendra
as the editor, printer and publisher of Daily Pratap and Vir Arjun published
from New Delhi. It will suffice to set out the Notification in respect of Daily
Pratap which ran as follows:
Punjab Government Gazette Extraordinary
Published by Authority Chandigarh, Sunday, July 14, 1957.
Home Department Notification The 14th July,
1957, 41 316 No. 8453-C(H)-57/14580:-Whereas 1, Ranbir Singh, Home Secretary to
Government, Punjab, authorised by the said Government under section 3 of the
Punjab Special Powers (Press) Act, 1956, have satisfied myself that it is
necessary to combat and prevent the propaganda relating to " save Hindi
agitation " carried on in the Pratap with the object of disturbing
communal harmony in the State of Punjab and thereby affecting public order;
Now, therefore, in exercise of the powers
conferred by section 3(1) of the said Act, I do hereby prohibit the bringing
into Punjab of the newspaper printed and published at Delhi, from the date of
publication of this notification." The petitioners contend that both ss. 2
and 3 of the impugned Act are ultra vires the State Legislature, because they
infringe the fundamental rights of the petitioners guaranteed by Arts. 19(1)(a)
and 19(1)(g) of the Constitution and are not saved by the protecting provisions
embodied in Art. 19(2) or Art. 19(6). In the first place it is contended that
these sections impose not merely restrictions on but total prohibition against
the exercise of the said fundamental rights, for in the case of the
Notifications under s. 2 there is a total prohibition against the publication
of all matters' relating to or in connection with the " save Hindi
agitation " and in the case of the Notifications made under s. 3 there is
a complete prohibition against the entry and the circulation of the papers
published from New Delhi in the whole of Punjab.
There is and can be no dispute that the right
to freedom of speech and expression carries with it the right to propagate and
circulate one's views and opinions subject to reasonable restrictions. The
point to be kept in view is that the several rights of freedom guaranteed to
the citizens by Art.
19(1) are exercisable by them throughout and
in all parts of the territory of India. The Notifications under s. 2(1)(a)
prohibiting the printing and publishing of any article, report, news item,
letter or any other material of any character whatsoever relating to or
connected with " save Hindi agitation " or those under s. 3(1)
imposing a ban against the entry 317 and the circulation of the said papers
published from New Delhi in the State of Punjab do not obviously take away the
entire right, for the petitioners are yet at liberty to print and publish all
other matters and are free to circulate the papers in all other parts of the
territory of India. The restrictions, so far as they extend, are certainly
complete but whether they amount to a total prohibition of the exercise of the
fundamental rights must be judged by reference to the ambit of the rights and,
so judged, there can be no question that the entire rights under Arts. 19(1)(a)
and 19(1)(g) have not been completely taken away, but restrictions have been
imposed upon the exercise of those rights with reference to the publication of
only articles etc. relating to a particular topic and with reference to the
circulation of the papers only in a particular territory and, therefore, it is
not right to say that these sections have imposed a total prohibition upon the
exercise of those fundamental rights.
Learned counsel then urges that assuming
these sections impose only restrictions they are, nevertheless, void as being
repugnant to the Constitution, because the restrictions are not reasonable. As
regards the right to freedom of speech and expression guaranteed by Art.
19(1)(a) it is qualified by Art. 19(2) which protects a law in so far as it
imposes reasonable restriction on the exercise of the right conferred by Art.
19(1)(a) "in the interests of..................................... public
order.................. Likewise the right to carry on any occupation, trade or
business guaranteed by Art. 19(1)(g) is out down by Art. 19(6) which protects a
law imposing "in the interests of the general public" reasonable
restrictions on the exercise of the right conferred by Art. 19(1)(g). As has
been explained by this Court in Ramji Lal Modi v. The State of U. P. (1) the
words " in the interests of " are words of great amplitude and are
much wider than the words " for the maintenance of ". The expression
" in the interest of " makes the ambit of the protection very wide,
for a law may not have been designed to directly maintain the public order or
to directly protect the general public against any particular evil and yet it
(1) Petition No. 252 of 1955. decided on April 5, 1957.
318 may have been enacted "in the
interests of " the public order or the general public as the case may be.
It is against this background, therefore, that we are to see whether the
restrictions imposed by ss. 2 and 3 can be said to be reasonable restrictions
within the meaning of Arts.
19(2) and 19(6).
The test of reasonableness has been laid down
by this Court in The State of Madras v. V. G. Row (1) in the following words:
" It is-important in this context to
bear in mind that the test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract standard or
general pattern, of reason ableness can be laid down as applicable to all
cases. The nature of the right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil sought
to be remedied thereby, the disproportion of the imposition, the prevailing
conditions at the time, should all enter into the judicial verdict.
This dictum has been adopted and applied by
this Court in several subsequent cases. The surrounding circumstances in which
the impugned law came to be enacted, the underlying purpose of the enactment
and the extent and the urgency of the evil sought to be remedied have already
been adverted to. It cannot be overlooked that the Press is a mighty institution
wielding enormous powers which are expected to be exercised for the protection
and the good of the people but which may conceivably be abused and exercised
for anti- social purposes by exciting the passions and prejudices of a section
of the people against another section and thereby disturbing the public order
and tranquility or in support of a policy which may be of a subversive
character. The powerful influence of the newspapers, for good or evil, on the
minds of the readers, the wide sweep of their reach, the modern facilities for
their swift circulation to territories, distant and near, must all enter into
the judicial verdict and the reasonableness of the restrictions imposed upon
(1) [1952] S.C.R. 597,607.
319 the Press has to be tested against this
background. It is certainly a serious encroachment on the valuable and
cherished right to freedom of speech and expression if a newspaper is prevented
from publishing its own views or the views of its correspondent&-relating
to or concerning what may be the burning topic of the day. Our social interest
ordinarily demands the free propagation and interchange of views but
circumstances may arise when the social interest in public order may require a
reasonable subordination of the social interest in free speech and expression
to the needs of our social interest in public order. Our Constitution
recognises this necessity and has attempted to strike a balance between the two
social interests. It permits the imposition of reasonable restrictions on the
freedom of speech and expression in the interest of public order and on the
freedom of carrying on trade or business in the interest of the general public.
Therefore, the crucial question must always be : Are the restrictions imposed
on the exercise of the rights under Arts. 19 (1) (a) and 19 (1) (g) reasonable
in view of all the surrounding circumstances ? In other words are the
restrictions reasonably necessary in the interest of public order under Art.
19(2) or in the interest of the general public under Art. 19(6) ? It is
conceded that a serious tension had arisen between the Hindus and the Akalis
over the question of the partition of the State on linguistic and communal
basis. The people were divided into two warring groups, one supporting the
agitation and the other opposing it. The agitation and the counter agitation
were being carried on in the Press and from the platforms. Quite conceivably
this agitation might at any time assume a nasty communal turn and flare up into
a communal frenzy and factious fight disturbing the public order of the State
which is on the border of a foreign State and where consequently the public
order and tranquillity were and are essential in the interest of the safety of
the State. It was for preserving the safety of the State and for maintaining
the public order that the Legislature enacted this impugned Statute.
Legislature had to ask itself the question, who will be 320 the appropriate
authority to determine at any given point of time as to whether the prevailing circumstances
require some restriction to be placed on the right to freedom of speech and
expression and the right to carry on any occupation, trade or business and to
what extent? The answer was obvious, namely, that as the State Government was
charged with the preservation of law and order in the State, as it alone was in
possession of all material facts it would be the beat authority to investigate
the circumstances and assess the urgency of the situation that might arise and
to make up its mind whether any and, if so., what anticipatory action must be
taken for the prevention of the threatened or anticipated breach of the peace
The court is wholly unsuited to gauge the seriousness of the situation, for it
cannot be in possession of materials which are available only to the executive
Government. Therefore, the determination of the time when and the extent to
which restrictions should be imposed on the Press must of necessity be left to
the judgment and discretion of the State Government and that is exactly what
the Legislature did by passing the statute' It gave wide powers to the State
Government, or the authority to whom it might delegate the same, to be
exercised only if it were satisfied as to the things mentioned in the two
sections. The conferment of such wide powers to be exercised on the subjective
satisfaction of the Government or its delegate as to the necessity for its
exercise for the purpose of preventing or combating any activity prejudicial to
the maintenance of communal harmony affecting or likely to affect public order
cannot, in view of the surrounding circumstances and tension brought about or
aided by the agitation in the Press, be regarded as anything but the imposition
of permissible reasonable restrictions on the two fundamental rights. Quick
decision and swift and effective action must be of the essence of those powers
and the exercise of it must, therefore, be left to the subjective satisfaction
of the Government charged with the duty of maintaining law and order. To make
the exercise of these powers justiciable and subject to the judicial scrutiny
will defeat the very.
321 purpose of the enactment. Even in his
dissenting judgment in Dr. N. B. Khare v. The State of Delhi (1) Mukherjea, J.,
conceded that in cases of this description certain authorities could be
invested with power to make initial orders on their own satisfaction and not on
materials which satisfy certain objective tests.
It is said that the sections give unfettered
and uncontrolled discretion to the State Government or to the officer authorised
by it in the exercise of the drastic powers given by the sections. We are
referred to the observations of Mukherjea, J., in Dwarka Prasad Laxmi Narain v.
The State of Uttar Pradesh (2). That case does not seem to us to have any
application to the facts of this case.' In the first place, the discretion is
given in the first instance to the State Government itself and not to a very
subordinate officer like the licensing officer as was done in Dwaraka Prasad's
case (supra). It is true that the State Government may delegate the power to
any officer or person but the fact that the power of delegation is to be
exercised by the State Government itself is some safeguard against the abuse of
this power of delegation. That apart, it will be remembered that the Uttar
Pradesh Coal Control Order, 1953, with reference to which the observations were
made, prescribed no principles and gave no guidance in the matter of the
exercise of the power. There was nothing in that order to indicate the purpose
for which and the circumstances under which the licensing authority could grant
or refuse to grant, renew or refuse to renew, or suspend, revoke, cancel or
modify any license under that order and, therefore, the power could be
exercised by any person to whom the State Coal Controller might have chosen to
delegate the same. No rules had been framed and no directions had been given on
the relevant matters to regulate or to guide the exercise of the discretion of
the licensing officer. That cannot, in our judgment, be said about s. 2 or s. 3
of the impugned Act, for the exercise of the power under either of these two
sections is conditioned by the State Government or the authority authorised by
the said Government being satisfied that such (1) [1950] S.C.R. 510.
(2) [1954] S.C.R. 803,813.
322 action was necessary for the purpose of
preventing or combating any activity prejudicial to the maintenance of communal
harmony affecting or likely to affect the public order. As explained by this
Court in Harishankar Bagla v. The State of Madhya Pradesh(1), the dictum of
Mukherjea, J., can have no application to a law which sets out its underlying
policy so that the order-to be made under the law is to be governed by that
policy and the discretion given to the authority is to be exercised in such a
way as to effectuate that policy, and the conferment of such a discretion so
regulated cannot be called invalid. The two sections before us lay down the
principle that the State Government or the delegated authority can exercise the
power only if it is satisfied that its exercise is necessary for the purposes
mentioned in the sections. It cannot, be exercised for any other purposes. In
this view of the matter neither of these sections can be questioned on the
ground that they give unfettered and uncontrolled discretion to the State
Government or one executive officer in the exercise of discretionary powers
given by the section.
It is next said that an executive officer may
untruthfully say, as a matter of form, that he has been satisfied and there is
nothing in the section which may prevent him from abusing the power so
conferred by these sections. But, as pointed out in Khare's case (supra), the,
exercise of a discretionary preventive power to be exercised in anticipation
for preventing a breach of public order must necessarily be left to the State
Government or its officers to whom the State Government may delegate the
authority. No assumption ought to be made that the State Government or the
authority will abuse its power. To make the exercise of the power justiciable
will defeat the very purpose for which the power is given. Further, even if the
officer may conceivably abuse the power, what will be struck down is not the
statute but the abuse of power.
Reference has been made to the principles
enunciated by this Court in Ramesh Thappar v. The, State Of (1) [1955] 1 S.C.R.
380, 386, 387.
323 Madras (1), and applied in Chintaman Rao
v. The State of Madhya Pradesh(2), namely, that if the language employed in the
impugned law is wide enough to cover restriction both within and outside the
limits of constitutionally permissible legislative action affecting the
guaranteed fundamental rights and so long as the possibility of the statute
being applied for purposes not sanctioned by the Constitution cannot be ruled
out, the sections must be struck down as ultra vires the Constitution. We do
not think those principles have any applications the instant case. It will be
remembered that Art.19(2), as it was then worded, gave protection to a law
relating to any matter which under- mined the security of or tended to
overthrow the State.
Section 9(1-A) of the Madras Maintenance of
Public Order was made "for the purpose of securing public safety and the
maintenance of public order". It was pointed out that whatever end the
impugned Act might have been intended to subserve and whatever aim its framers
might have had in view, its application and scope could not, in the absence of
limiting words in the statute itself, be restricted to the aggravated form of
activities which were calculated to endanger the security of the State. Nor was
there any guarantee that those officers who exercised the power under the Act
would, in using them, discriminate between those who acted prejudicially to the
security of the State and those who did not. This consideration cannot apply to
the case now under consideration. Article 19(2) has been amended so as to
extend its protection to a law imposing reasonable restrictions in the
interests of public order and the language used in the two sections of the
impugned Act quite clearly and explicitly limits the exercise of the powers
conferred by them to the purposes specifically mentioned in the sections and to
no other purpose.
Apart from the limitations and conditions for
the exercise of the powers contained in the body of the two sections as
hereinbefore mentioned, there are two provisos to s. 2(1)(a) which are
important. Under the first proviso the orders made under s. 2(1)(a) can only
remain (1) [1950] S.C.R. 594.
42 (2) [1950] S.C.R. 759.
324 in force for two months from the making
thereof. Further, there is another proviso permitting the aggrieved person to
make a representation to the State Government which may, on consideration
thereof, modify, confirm or rescind the order.
A power the exercise of which is conditioned
by the positive requirement of the existence of the satisfaction of the
authority as to the necessity for making the order for the specific purposes
mentioned in the section and the effect of the exercise of which is to remain
in operation for a limited period only and is liable to be modified or
rescinded upon a representation being made cannot, in our opinion, in view of
the attending circumstances, be characterised as unreasonable and outside the
protection given by Art. 19(2) or Art. 19(6). Under el. (b) of sub-s. (1) of s.
2. also there are several conditions, namely, that the matter required to be
published must not be more than two columns, that adquate remuneration must be
paid for such publication and that such requirement cannot prevail for more
than one week. A consideration of these safeguards must, in our opinion, have
an important bearing in determining the reasonableness of the restrictions
imposed by s. 2. The prevailing circumstances which led to the passing of the
statute, the urgency and extent of the evil of communal antagonism and hatred
which must be combated and prevented, the facility with which the evil might be
aggravated by partisan news and views published in daily newspapers having
large circulation and the conditions imposed by the section itself on the
exercise of the power conferred by it must all be taken into consideration in
judging the reasonableness or otherwise of the law and, so judged, s. 2 must be
held to have imposed reasonable restrictions on the exercise of the rights
guaranteed by Arts. 19(1)(a) and 19(1)(g) in the interest of public order and
of the general public and is protected by Arts. 19(2) and 19(6).
Learned counsel appearing for the petitioner
Virendra also maintains that assuming that s. 2(1)(a) is valid, the
Notifications actually issued thereunder are much too wide in language and
cannot be supported. The 325 operative part of the Notification prevents the
petitioner from publishing any article, news item, letter or any other matter
of any character whatsoever relating to or connected with the "save Hindi
agitation". It is said that the petitioner cannot even publish a report or
a letter from a correspondent against the it save Hindi agitation ". It cannot
publish a report of the statement made on the floor of the House by the Prime
Minister deprecating the " save Hindi agitation ". This argument
appears to us to have no real substance. If the section is good-and that is
what we hold it to be and that is what, for the purposes of this part of the
argument, learned counsel is prepared to assume- then the section has conferred
on the State Government this power to be exercised if it is satisfied as to the
necessity for its exercise for the purposes mentioned in the section.
In other words the exercise of the power is
made dependent on the subjective satisfaction of the State Government or its
delegate. If the State Government or its delegate is satisfied that for the
purposes of achieving the specified objects it is necessary to prohibit the
publication of any matter relating to the " save Hindi agitation "
then for the court to say that so much restriction is not necessary to achieve
those objects is only to substitute its own satisfaction for that of the State
Government or its delegate. The authority before making the order had applied
its mind and had made its estimate of the general trend of the policy of these
papers and their possible reactions and had formed its satisfaction as to the
necessity for making the orders founded on the several articles published in
these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had
systematically published matters in support of the agitation and its
disapproval of everything which might run counter to that agitation. It is
admitted that the policy of the papers is to support the " save Hindi
agitation ". Therefore, a grievance that the papers are not allowed even
to publish anything against the agitation sounds hollow, wholly unconvincing
and of no substance at all. It may not be unreasonable for the Government to
hold the opinion, in 326 view of the antecedents and policy of these papers
that they will not publish any news or views running counter to their policy
without adverse comments. Further, if there happens to be a change in their
policy there will be nothing to prevent the petitioner from making a
representation to the State Government asking it to modify its Notifications.
In our view, having regard to the body of s. 2(1)(a) and the two provisos thereto,
namely, the conditions as to the satisfaction of the authority in respect of
certain matters specified in the section, the time limit as to the efficacy of
the Notifications and the right to make a representation given to the aggrieved
party makes this grievance wholly illusory.
It is said that the Notifications should have
been qualified so as to prohibit the publication of any matter relating to the
" save Hindi agitation " which was likely to prejudicially affect the
public order. Suppose such a qualification had been super-added, then there
should be somebody who would have to judge whether any given publication did or
did not affect the public order. If the editor claimed that it did not but the
State held that it did who would decide and when ? It would obviously be the
court then which would have to decide whether the publication was likely to
prejudicially affect the public order. If the Government exercised the power of
seizure to stop the circulation of the offending issue then it would do so at
the risk of having to satisfy the court that for preventing the public order
being prejudicially affected it was necessary to stop such circulation. That
would be the issue before the court. Likewise if the Government launched a
prosecution under s. 4 then also the issue would be the same. That would
obviously defeat the very purpose of the section itself which, for this
argument, is accepted as valid. The question of the necessity for the exercise
of the power for the purpose of achieving the specified objects is, having
regard to the very nature of the thing and the surrounding circumstances, left
by the section entirely to the subjective satisfaction of the Government and if
the Government exercises that power after being 327 satisfied that it is necessary
so to do for the purposes mentioned in the section and if the Notification is
within the section, in the sense that it directs or prohibits the doing of
something which the section itself authorises the Government to direct or
prohibit, then nothing further remains to be considered. The' only issue that
can then arise will be whether the Notification has been complied with and the
court will only have to decide whether there has been a contravention of the
Notification. To introduce the suggested qualification in the Notification will
be to make the exercise of the power which is by the section left to the
subjective satisfaction of the Government dependent on an objective test
subject to judicial scrutiny. That, as we have explained, will defeat the very purpose
of the section itself.
It is lastly contended that the impugned
Notifications have been made mala fide in order only to suppress legitimate
criticisms and fair comments on public affairs. We have perused the articles
annexed to the affidavit in opposition and referred to in the Notifications
themselves and we are not satisfied that no reasonable person reading those
articles could entertain the opinion and feel satisfied that it was necessary
to make the order for the purposes mentioned in the section. We are unable to
hold, on the materials before us, that the Notifications issued under s.2 were
mala fide.
The observations hereinbefore made as to the
safeguards set forth in the provisions of s. 2(1)(a) and (b) cannot, however,
apply to the provisions of s. 3. Although the exercise of the powers under s.
3(1) is subject to the same condition as to the satisfaction of the State
Government or its delegate as is mentioned in s. 2(1)(a), there is, however, no
time limit for the operation of an order made under this section nor is there
any provision made for any representation being made to the State Government.
The absence of these safeguards in s. 3 clearly makes its provisions
unreasonable and the learned Solicitor-General obviously felt some difficulty
in supporting the validity of this 328 section. It is surprising how in the
same statute the two sections came to be worded differently.
For reasons stated above petition No. 95 of
1957 (Virendra v. The State of Punjab) which impugns the Notifications issued
under s. 2(1)(a) must be dismissed and petition No.
96 of 1957 (K. Narendra v. The State of Pun
ab) which challenges s. 3 must be allowed. In the circumstances of these cases
we make no order as to the costs of these applications.
Petition No. 95 of 1957 dismissed.
Petition No. 96 of 1957 allowed.
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