The Superintendent, Central Prison, Fatehgarh
Vs. Ram Manohar Lohia [1960] INSC 10 (21 January 1960)
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR,
P.B.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 633 1960 SCR (2) 821
CITATOR INFO :
APL 1962 SC1106 (8) APL 1962 SC1166 (15) R
1963 SC 812 (10) MV 1966 SC 740 (49,66) RF 1967 SC1110 (16) RF 1971 SC2486 (14)
RF 1973 SC1091 (6) R 1974 SC 911 (2,4) R 1987 SC 998 (4) RF 1989 SC 371 (9)
ACT:
Fundamental Right-Infringement of-Enactment
imposing restrictions on freedom of speech-Constitutional validityTest-"In
the interest of Public order". Meaning of-Doctrine of
severability-Applicability-Constitution of India, Arts. 19(1) (a), 19(2)U.P.
Special Powers Act, 1932 (U.P. XIV Of 1932) s. 3.
HEADNOTE:
Section 3 of the U.P. Special Powers Act,
1932 (XIV Of 1932), provided as follows:"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 any liability, and whoever does any act, with intent
or knowing it to be likely that any words, signs or visible representations
containing such instigation shall thereby be communicated directly or
indirectly to any person or class of persons, in any manner whatsoever, shall
be punishable with imprisonment which may extend to six months, or with fine,
extending to Rs. 250, or with both." The appellant, who was prosecuted
under the section for delivering speeches instigating cultivators not to pay
enhanced irrigation rates to the Government, applied to the High Court for a
writ of habeas corpus on the ground, amongst others, that the said section was
inconsistent with Art. 19(1) (a) of the Constitution and as such void. The High
Court decided in favour of the appellant and he was released. The State
appealed to this Court and the question for determination was whether the
impugned section embodied reasonable restrictions in the interests of public order
and was thus protected by Art. 19(2) of the Constitution.
Held, that even though in a comprehensive
sense all the grounds specified in Art. 19(2) of the Constitution on which any
reasonable restrictions on the right to freedom of speech must be based can be
brought under the general head "public order", that expression,
inserted into the Article by the Constitution (First Amendment) Act, 1951, must
be demarcated from the other grounds and ordinarily read in an exclusive sense
to mean public peace, safety and tranquility in contradistinction to national
upheavals, such as revolution, civil strife and war, affecting the security of
the State.
Romesh Thappar v. The State of Madras (1950)
S.C.R. 594, Brij Bhushan v.The State of Delhi. (1950) S.C.R. 605, The State of
Bihar v. Shailabala Devi. (1952) S.C.R. 654 and Cantewell v. Connecticut.
(1940) 310 U.S. 296, discussed.
822 It is well settled by decisions of this
Court that in a restriction in order to be reasonable must have a reasonable
relation to the object the Legislation has in view and must not go beyond it.
Restrictions, therefore, meant to be in the interest of public order which have
no proximate relationship or nexus with it but can be only remotely or
hypothetically connected with it, cannot be reasonable within the meaning of
Art. 19(2) of the Constitution.
Rex v. Basudeva, A.I.R.(1950) F.C. 67,
applied.
Ramji Lal Modi v. The State of U.P. (1957)
S.C.R. 86o and Virendra v. The State of Punjab, (1958) S.C.R. 308, explained.
So judged, it cannot be said that the acts
prohibited under the wide and sweeping provisions of s. 3 of the Act can have
any proximate or even foreseeable connection with public order sought to be
protected by it, and, consequently, that section, being violative of the right
to freedom of speech guaranteed by Art. 19(1) (a) of the Constitution, must be
struck down as unconstitutional.
It would be incorrect to argue that since
instigation by a single individual not to pay taxes might ultimately lead to a
revolution resulting in destruction of public order, that instigation must have
a proximate connection with public order. No fundamental rights can be
restricted on such hypothetical and imaginary consideration.
Nor is it possible to accept the argument
that in a democratic set up there can be no scope for agitational approach or
that any instigation to break a bad law must by itself constitute a breach of
public order, for to do so without obvious limitations would be to destroy the
right to freedom of speech on which democracy is founded.
It is not possible to apply the doctrine of
severability relating to fundamental rights as enunciated by this Court to the
provisions of the impugned section, since it is not possible to precisely
determine whether the various categories of instigation mentioned therein fall
within or without the constitutionally permissible limits of legislation and
separate the valid parts from the invalid.
R.M.D. Chamarbaugwalla v. The Union of India
(1957) S.C.R.
93o, explained and distinguished.
Romesh Thappar v. The State of Madras (1950)
S.C.R. 594 and Chintaman Rao v. The State o Madhya Pradesh. (1950) S.C.R.
759, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 76 of 1956.
Appeal from the judgment and order dated
August 27, 1954, of the Allahabad High Court in Criminal Misc. Writ No. 20 of
1954.
823 K. L. Misra, Advocate-General for the
State of Uttar Pradesh. G. 0. Mathur and C. P. Lal, for the appellants.
N. S. Bindra, for the respondent.1960.
January 21. The Judgment of the Court was delivered by SUBBA RAO J.-This appeal
raises the question of interpretation of the words " in the interest of
public order " in Art. 19(2) of the Constitution.
The facts are not in dispute and they lie in
a small compass. The respondent, Dr. Ram Manohar Lohia, is the General
Secretary of the Socialist Party of India. The U. P. Government enhanced the
irrigation rates for water supplied from canals to cultivators. The party to
which the respondent belongs resolved to start an agitation against the said
enhancement for the alleged reason that it placed an unbearable burden upon the
cultivators. Pursuant to the policy of his party, the respondent visited
Farrukhabad and addressed two public meetings wherein he made speeches
instigating the audience not to pay enhanced irrigation rates to the
Government. On July 4, 1954, at 10 p.m. he was arrested and produced before the
City Magistrate, Farrukhabad, who remanded him for two days. After
investigation, the Station officer, Kaimganj, filed a charge-sheet against the
respondent before Sri P. R. Gupta, a Judicial Officer at Farrukliabad. On July
6, 1954, the Magistrate went to the jail to try the case against the
respondent, but the latter took objection to the trial being held in the jail
premises. When the Magistrate insisted upon proceeding with the trial, the
respondent obtained an adjournment on the ground that he would like to move the
High Court for transfer of the case from the file of the said Magistrate.
Thereafter the respondent filed a petition before the High Court for a writ of
habeas corpus on the ground, among others, that s. 3 of the U. P. Special
Powers Act (Act No. XIV of 1932), 1932, (hereinafter called the Act) was void
under the Constitution.
105 824 In the first instance the petition
came up for disposal before a division bench of the High Court at Allahabad
consisting of Desai and Chaturvedi, Elaborate arguments were addressed before
them covering a wide field.
The learned Judges delivered differing
judgments expressing their views on the main points raised before them. They
referred the matter to the Chief Justice for obtaining the opinion of a third
Judge on the following two points: " (i) Was the' provision of s. 3 of the
U. P. Special Powers Act of 1932 making it penal for a person by spoken words
to instigate class of persons not to pay dues recoverable as arrears of land
revenue, inconsistent with Art. 19(1)(a) of the Constitution on the 26th of
January, 1950 ? " and " (ii) if so, was it in the interests of public
order ? ". The petition was placed before Agarwala, J., as a third Judge,
who agreeing with Desai, J., gave the following answers to the questions
referred to him :
Question No. (i). "The provision of
section's of the U. P. Special Powers Act, 1932, making it penal for a person
by spoken words to instigate a class of persons not to pay dues recoverable as
arrears of land revenue, was inconsistent with Article 19(1)(a) of the
Constitution on the 26th January, 1950." Question No. (ii). " The
restrictions imposed by section 3 of the U. P. Special Powers Act, 1932, were
not in the interests of public order." In the usual course the matter was
placed before the two learned Judges who first heard the case and they, on the
basis of the majority view, allowed the petition and directed the respondent to
be released.. The State has preferred the present appeal against the said order
of the High Court.
The learned Advocate General, appearing for
the appellant.
stated before us that be did not propose to
canvass the correctness of the majority view on one of the important points
raised in the case, namely, that the effect of the passing of the Act did not
ipso facto deprive a citizen of his freedom of speech guaranteed. under Art.
19(1) (a) of the Constitution and its validity should be tested by the
provisions 825 of Art. 19(2) thereof. He did not. concede the validity of the
finding in this regard but assumed its correctness for the purpose of this
case. Nothing further, therefore, need be mentioned on this point.
The gist of the argument of the learned
Advocate General may be stated thus: The legislature can make laws placing
reasonable restrictions on the rights of a citizen to freedom of speech and
expression in the interests of public order among other grounds. The words "in
the interests of public order" are wider in connotation than the words
" for the maintenance of public order ". Laws are rules made by the
legislature for the governance of the people in the State which they are bound
to obey, and they are enacted to keep public peace and order. The avowed object
of s. 3 of the Act was to prevent persons from instigating others to break the
laws imposing a liability upon a person or class of persons to pay taxes and
other dues to the State, any authority or to any land-owner. The impugned
section was enacted in the interests of public order and therefore the section
was protected by Art. 19(2) of the Constitution.
The learned Advocate General pointed out that
the object of the State in preferring this appeal was to obtain the decision of
this Court on the question of constitutional validity of s. 3 of the Act and
not to pursue the matter against Dr. Lohia.
The respondent was not present at the time
the appeal was heard and was not represented by an advocate. As the question
raised was an important one, we requested Mr. N. S. Bindra to assist the Court,
and he kindly agreed to do so.
He supported the majority view of the High
Court. We record our thanks for his assistance.
At the outset it would not be out of place to
notice briefly the history of the Act. The Act was originally passed in the
year 1932 during the British rule. In an attempt to offset the campaign of
non-payment of taxes and other forms of agitation resorted to by the Congress
Party, originally it was put on the statute book for one year; but in 1940 when
the State was under the " Governor's rule ", the Act was made 826
permanent. Under the Act, ss. 1 and 2 came into effect immediately on the
passing of the Act and S. 1(2) enabled the Government by notification to extend
all or any of the remaining sections to any district or to any part of a
district in the United Provinces. After the Constitution, the Act was not
repealed but was allowed to continue, with necessary adaptations, in the statue
book. Between April and June, 1954, the State Government extended the
provisions of the Act to 33 districts including Farrukhabad district.
Now lot us look at the provisions of the Act
to ascertain its scope and field of operation. The preamble discloses that it
was enacted in 1932 to make provision against and to take powers to deal with
instigation to the illegal refusal of the payment of certain liablities and s.
2 defines " liablity " to mean " land revenue or any sum
recoverable as arrears of land revenue or any tax, rate, cess or other dues or
amount payable to Government or to any local authority, or rent of agricultural
land or anything recoverable as arrears of or along with such rent ".
Section 3 prescribes the punishment for instigation to the non-payment of a
liability. As the argument centres round this section, it will be convenient to
read the same:
Section 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 any liability, and whoever does any act, with intent or
knowing it to be likely that any words, signs or visible representations con.
taining such instigation shall thereby be
communicated directly or indirectly to any person or class of persons, in any
manner whatsoever, shall be punishable with imprisonment which may extend to
six months, or with fine, extending to Rs. 250, or with both." Section 4
says that any person to whom an arrear of liability is due may apply to the
Collector to realize it and the Collector is authorized to realize the same 827
as an arrear of land revenue. The impugned section may be dissected into the
following components (i) whoever by word, either spoken or written, or by signs
or by visible representations or otherwise, (ii) instigates, (iii) expressly or
by implication,(iv) any person or class of persons, (v) not to pay any
liability, (vi) to defer payment of any liability, (vii) does an act with
intent that any words etc. shall be communicated to any person or class of
persons, (viii) with the knowledge that it is likely that such words etc. shall
be communicated to any person or class of persons, (ix) such communication may
be made directly, or indirectly and (x) shall be punished with imprisonment or
with fine or with both. Under this section a wide net has been cast to catch in
a variety of acts of instigation ranging from friendly advice to a systematic
propaganda not to pay or to defer payment of liability to Government, any
authority or to any person to whom rent is payable in respect of agricultural
land. The meaning of this section, read along with ss. 2 and 4, can be
ascertained more clearly by illustration than by definition. (1) A instigates B
not to pay any liability to Government, any authority or to any land owner; (2)
A instigates B to defer payment of any liability to Government, any authority
or landlord; (3) A instigates a class of persons to do the same; (4) A may do
any one of the foregoing things not only by word, but also by signs, visible
representations or otherwise; (5) A may do any one of the things bona fide
either to get the claim decided in a Court of law or to gain time to get the
law changed; (6) A may instigate B not to pay any amount due to Government or
to any authority, but the said amount can be recovered by the authority
concerned as arrears of land revenue; (7) A may tell C with intention or with
knowledge that the said instigation may be communicated to B so that he may not
pay; (8) any statement by A to C may imply such instigation. In its wide
amplitude the section takes in the innocent and the guilty persons, bona fide
and mala fide advice, individuals and class, abstention from payment and
deferment of payment, 828 expressed or implied instigation, indirect or direct
instigation, liability due not only to Government but to any authority or
landholder. In short, no person, whether legal adviser or a friend or a
well-wisher of a person instigated can escape the tentacles of this section,
though in fact the rent due has been collected through coercive process or
otherwise.
We shall now proceed to consider the
constitutional validity of this section. The material portions of the relevant
provisions of the Constitution may now be read:
Article 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 law, 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
security of the State, friendly relations with foreign States, public order, detence
or morality or in relation to contempt of court, defamation or incitement to an
offence." Clause (2) of Art. 19 was amended by the Constitution (First
Amendment) Act, 1951. By this amendment several new grounds of restrictions
upon the freedom of speech have been introduced, such as friendly relations
with foreign States, public order and incitement to an offence. It is self
evident and common place that freedom of speech is one of the bulwarks of a
democratic form of Government. It is equally obvious that freedom of speech can
only thrive in an orderly society. Clause (2) of Art. 19, therefore, does not
affect the operation of any existing law or prevent the State from making any
law in so far as such law imposes reasonable restrictions on the exercise of
the right of freedom of speech in the interest of public order, among others.
To sustain the existing law or a new law made by the State under cl. (2) of
Art. 19, so far as it is relevant to the present enquiry, two conditions should
be 829 complied with, viz., (i) the restrictions imposed must be reasonable;
and (ii) they should be in the interests of public order. Before we consider
the scope of tile word,-, of limitation, " reasonable restrictions"
and " in the interests of ", it is necessary to ascertain the true
meaning of the expression public order " in the said clause.
The expression public order" has a very
wide connotation.
Order is the basic need in any organised
society. It implies the orderly state of society or community in which citizens
can peacefully pursue their normal activities of life. In the words of an
eminent Judge of the Supreme Court of America " the essential rights are
subject to the, elementary need for order without which the guarantee of those
rights would be a mockery ". The expression has not been define(] in the
Constitution, but it occurs in List II of its Seventh Schedule and is also
inserted by the Constitution (First Amendment) Act, 1951 in el. (2) of Art.
19. The sense in which it is used in Art. 19
can only be appreciates by ascertaining how the Article was construed before it
was inserted therein and what was the defect to remedy which the Parliament
inserted the same by the said amendment. The impact of el. (2) of Art. 19 on
Art.
19(1)(a) before the said amendment was
subject to judicial scrutiny by this Court in Romesh Thappar v. The State of
Madras(l). There the Government of Madras, in exercise of their powers under s.
9(1-A) of the Madras Maintenance of Public Order Act, 1949, purported to issue
an order whereby they imposed a ban upon the entry and circulation of the journal
called " Cross -.Roads " in that State. The petitioner therein
contended that the said order contravened his fundamental right to freedom of
speech and expression.
At the time when that order was issued the
(expression " public order " was not in Art. 19(2) of the
Constitution;
but the words " the security of the
State " were there. In considering whether the impugned Act was made in
the interests of security of the State, Patanjali Sastri, J., as he then was,
after citing the observation of Stephen in his Criminal Law of England, states:
(1) [1950) S.C.R. 594, 600, 601, 602, 830
"Though all these offences thus involve disturbances of public
tranquillity and are in theory offences against public order, the difference
between them being only a difference of degree, yet for the purpose of gurading
the punishment to be inflicted in respect of them they may be classified into
different minor categories as has been done by the Indian Penal Code.
Similarly, the Constitution, in formulating the varying criteria for
permissible legislation imposing restrictions on the fundamental rights
enumerated in article 19 (1), has placed in a distinct category those offences
against public order which aim at undermining the security of the State or
overthrowing it, and made their prevention the sole justification for
legislative abridgement of freedom of speech and expression, that is to say,
nothing less than endangering the foundations of the State or threatening its
overthrow could. justify curtailment of the rights to freedom of speech and
expression.........." The learned Judge continued to state:
" The Constitution thus requires a line
to be drawn in the field of public order or tranquillity marking off, may be,
roughly, the boundary between those serious and aggravated forms of public
disorder which are calculated to endanger the security of the State and the
relatively minor breaches of the peace of a purely local significance, treating
for this purpose differences in degree as if they were differences in kind.
" The learned Judge proceeded further to state:
" We, are therefore of opinion that
unless a law restricting freedom of speech and expression is directed solely
against the undermining of the security of the State or the overthrow of it,
such law cannot fall within the reservation under clause (2) of article 19,
although the restrictions which it seeks to impose may have been conceived
generally in the interests of public order. " This decision establishes
two propositions, viz., (i) maintenance of public order is equated with
maintenance of public tranquillity; and (ii) the offences against 831 public
order are divided into two categories, viz., (a) major offences affecting the
security of the State, and (b) minor offences involving breach of purely local
significance. This Court in Brij Bhushan v. The state of Delhi (1) followed the
earlier decision in the context of s. 7 (1) (c) of the East Punjab Public
Safety Act, 1949. Fazl Ali, J., in his dissenting judgment gave the expression
" public order " a wider meaning than that given by the majority
view. The learned Judge observed at p. 612 thus:
" 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 or 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. " This observation
also indicates that " public order " is equated with public peace and
safety. Presumably in an attempt to get over the effect of these two decisions,
the expression " public order " was inserted in Art. 19 (2) of the
Constitution by the Constitution (First Amendment) Act, 1951, with a view to
bring in offences involving breach of purely local significance within the
scope of permissible restrictions under cl. (2) of Art. 19. After the said
amendment, this Court explained the scope of Romesh Thappar's Case (1) in The
state of Bihar v. shailabala Devi (). That case was concerned with the
constitutional validity of s. 4 (1) (a) of the Indian Press (Emergency Powers)
Act, 1931. It deals with the words or signs or visible representations which
incite to or encourage, or tend to incite to or encourage the commission of any
offence of murder or any cognizable offence involving violence.
Mahajan, J., as he then was, observed at p.
660:
" The deduction that a person would be
free to incite to murder or other cognizable offence through the press with
impunity drawn from our decision in (1) [1950] S.C R. 605. (2) [1952] S.C.R.
654.
106 832 Romesh Thappar's case could easily
have been avoided as it was avoided by Shearer J., who in very emphatic terms
said as follows:
"I have read and re-read the judgments
of the Supreme Court, and I can find nothing in them myself which bear directly
on the point at issue,and leads me to think that, in their opinion, a
restriction of this kind is no longer permissible. " The validity of that
section came up for consideration after the Constitution (First Amendment) Act,
1951, which was expressly made retrospective, and therefore the said section
clearly fell within the ambit of the words " in the interest of public
order ". That apart the observations of Mahajan, J., as he then was,
indicate that even without the amendment that section would have been good
inasmuch as it aimed to prevent incitement to murder.
The words " public order " were
also understood in America and England as offences against public safety or
public peace. The Supreme Court of America observed in Cantewell v. Connecticut
(1) thus:
"The offence known as breach of the
peace embraces a great variety of conduct destroying or menacing public order
and tranquillity. It includes not only violent acts and words likely to produce
violence in others. No one would have the hardihood to suggest that the
principle of freedom of speech sanctions incitement to riot When clear and
present -danger of riot, disorder, interference with traffic upon the public
streets, or other immediate threat to public safety, peace, or order appears,
the power of the State to prevent or punish is obvious. " The American
decisions sanctioned a variety of restrictions on the freedom of speech in the
interests of public order.
They cover the entire gamut of restrictions
that can be imposed under different heads in Art. 19(2) of our Constitution.
The following summary of some of the cases of the Supreme Court of America
given in a well-known book on Constitutional Law illustrates the range of
categories of cases covering (1) (1940) 310 U S. 296, 308, 833 that expression.
" In the interests of public order, the State may prohibit and punish the
causing of 'loud and raucousnoise' in streets and public places by means of
sound amplifying instruments, regulate the hours and place of public
discussion, and the use of the public streets for the purpose of exercising
freedom of speech; provide for the expulsion of hecklers from meetings and
assemblies, punish utterances tending to incite an immediate breach of the
peace or riot as distinguished from utterances causing mere 'public
inconvenience, annoyance or unrest'. " In England also Acts like Public
Order Act, 1936, Theatres Act, 1843 were passed: the former making it an
offence to use threatening, abusive or insulting words or behaviour in any
public place or at any public meeting with intent to provoke a breach of the
peace or whereby a breach of the peace is likely to be caused, and the latter
was enacted to authorise the Lord Chamberlain to prohibit any stage play
whenever he thought its public performance would militate against good manners,
decorum and the preservation of the public peace.
The reason underlying all the decisions is
that if the freedom of speech was not restricted in the manner the relevant
Acts did, public safety and tranquillity in the State would be affected.
But in India under Art. 19(2) this wide
concept of" public order " is split up under different heads. It
enables the imposition of reasonable restrictions on the exercise of the right
to freedom of speech and expression in the interests of the security of the
State, friendly relations with foreign States, public order, decency or
morality, or in relation to contempt of court, defamation or incitement to an
offence. All the grounds mentioned therein can be brought under the general
head " public order " in its most comprehensive sense. But the
juxtaposition of the different grounds indicates that, though sometimes they tend
to overlap, they must be ordinarily intended to exclude each other. "
Public order " is therefore something which is demarcated from the others.
In that limited sense, particularly in view of, the history of the amendment,
it can be pustulated that "public order " 834 is synonymous with
public peace, safety and tranquillity.
The next question is what do the words "
interest of public order " mean ? The learned Advocate General contends
that the phrase "in the interest of public order" is of a wider
connotation than the words "for the maintenance of public order"
and,therefore, any breach of law which may have the tendency, however remote,
to disturb the public order would be covered by the said phrase. Support is
Sought to be drawn for this wide proposition from the judgment of this Court in
Ramji Lal Modi v. The State of U.P. (1). It is not necessary to state the facts
of that case, as reliance is placed only on the observations of Das, C.J., at
p. 865, which read:
"It will be noticed that the language
employed in the amended clause is "in the interests of" and not
"for the maintenance of". As one of us pointed out in Debi Saron v. The
State of Bihar (2), the expression "in the interests of" makes the
ambit of protection very wide. A law may not have been designed to directly
maintain public order and yet it may have been enacted in the interests of
public order." The learned Chief Justice again in Virendra v. The State of
Punjab (3) observed, at p. 317, much to the same effect:
"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 interests
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 may have been enacted
"in the interests of" the public order or the general public as the
case may be." We do not understand the observations of the Chief Justice
to mean that any remote or fanciful connection between the impugned Act and the
public order (1) [1957] S.C.R. 860. (2) A.I R. (1954) Pat 254 (3) [1958] S.C.R.
308.
835 would be sufficient to sustain its
validity. The learned Chief Justice was only making a distinction between an
Act which expressly and directly purported to maintain public order and one
which did not expressly state the said purpose but left it to be implied there
from ; and between an Act that directly maintained public order and that
indirectly brought about the same result. The distinction does not ignore the
necessity for intimate connection between the Act and the public order sought
to be maintained by the Act.
Apart from the said phrase, another
limitation in the clause, namely, that the restrictions shall be reasonable,
brings about the same result. The word "reasonable" has been defined
by this Court in more than one decision. It has been held that in order to be
reasonable, "restrictions must have reasonable relation to the object
which the legislation seeks to achieve and must not go in excess of that
object". The restriction made "in the interests of public order"
must also have reasonable relation to the object to be achieved, i.e., the
public order. If the restriction has no proximate relationship to the
achievement of public order, it cannot be said that the restriction is a
reasonable restriction within the meaning of the said clause. A full bench
decision of the Federal Court in Rex v. Basudeva (1) contains some observations
which give considerable assistance to construe the words. In that case, the
appellant was detained in pursuance of the order made by the Government of U.P.
under the U.P. Prevention of Black-Marketing (Temporary Powers) Act, 1947. The
question was whether the preventive detention provided for in s. 3(1) (i) of
the said Act was preventive detention for reasons connected with the
maintenance of public order. The argument in that case ran on the same lines as
in the present case. The learned Advocate General there urged that habitual
black-marketing in essential commodities was bound sooner or later to cause a
dislocation of the machinery of controlled distribution which, in turn, might
lead to breaches of the peace and that, therefore, detention with a view to
prevent such black marketing was covered by the (1) A.I.R. (1950) F.C. 67 836
entry. Answering that argument, Patanjali Sastri, J.,as he then was, pointed
out, at p. 69:
"Activities such as these are so remote
in the chain of relation to the maintenance of public order that preventive
detention on account of them cannot, in our opinion, fall within the purview of
Entry I of List II...........The connection contemplated must, in our view, be
real and proximate., not far-fetched or problematical." The decision, in
our view, lays down the correct test. The limitation imposed in the interests
of public order to be a reasonable restriction, should be one which has a
proximate connection or nexus with public order, but not one farfetched,
hypothetical or problematical or too remote in the chain of its relation with
the public order.
We shall now test the impugned section,
having regard to the aforesaid principles. Have the acts prohibited under s. 3
any proximate connection with public safety or tranquility ? We have already
analysed the provisions of s. 3 of the Act.
In an attempt to indicate its wide sweep, we
pointed out that any instigation by word or visible representation not to pay
or defer payment of any exaction or even contractual dues to Government,
authority or a landowner is made an offence. Even innocuous speeches are
prohibited by threat of punishment. There is no proximate or even forseeable
connection between such instigation and the public order sought to be protected
under this section. We cannot accept the argument of the learned Advocate
General that instigation of a single individual not to pay tax or dues is a
spark which may in the long run ignite a revolutionary movement destroying
public order. We can only say that fundamental rights cannot be controlled on
such hypothetical and imaginary considerations. It is said that in a democratic
set up there is no scope for agitational approach and that if a law is bad the
only course is to get it modified by democratic process and that any
instigation to break the law is in itself a disturbance of, the public order.
If this argument without obvious limitations be accepted, it would 837 destroy
the right to freedom of speech which is the very foundation of democratic way
of life. Unless there is a proximate connection between the instigation and the
public order, the restriction, in our view, is neither reasonable nor is it in
the interest of public order. In this view, we must strike down s. 3 of the Act
as infringing the fundamental right guaranteed under Art. 19(1)(a) of the
Constitution.
The learned Advocate General then contended
that the section is severable and that if so severed, the section may be made
to function within the limited field that stands the test of Art. 19(2) of the
Constitution. He asks us to read the section as follows :
"Whoever, by word, either spoken or
written, or by signs or by visible representations, or otherwise, instigates,
expressly or by implication, any class of persons not to pay or to defer
payment of any liability, and whoever does any act, with intent or knowing it
to be likely that any words, signs or visible representations containing such
instigation shall thereby be communicated directly or indirectly to any class
of persons, in any manner whatsoever, shall be punishable with imprisonment
which may extend to six months, or with fine, extending to Rs. 250, or with
both." By so doing he argues that instigation of a class of persons only
is made liable and thereby the section is rid of the vice of
unconstitutionality.
The doctrine of severability vis-a-vis the
fundamental rights is sought to be supported on the basis of the wording of
Art. 13(1) of the Constitution. Under that Article laws, in so far as they are
inconsistent with the provisions of Part III, ire void only to the extent of
such inconsistency.
But this implies that consistent and
inconsistent parts of a law are severable. This doctrine in its relation to
fundamental rights was considered by this Court in three decisions. In Romesh
Thapper's case (1) such an. argument has been repelled by this Court. Patanjali
Sastri, J., as he then was, stat@d the legal position thus at p. 603:
(1) [1950) S.C.R. 594, 600, 601 602.
838 Where a law purports to authorise the
imposition of restrictions on a fundamental right in language wide enough to
cover restrictions both within and without the limits of constitutionally
permissible legislative action affecting such right, it is not possible to
uphold it even so far as it may be applied within the constitutional limits, as
it is not severable. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be
held to be wholly unconstitutional and void." In Chintaman Rao v. The
State of Madhya Pradesh the same principle is again restated. Mahajan, J., as
he then was observed at p. 765:
The law even to the extent that it could be
said to authorize the imposition of restrictions in regard to agricultural
labour cannot be held valid because the language employed is wide enough to
cover restrictions both within and without the limits of constitutionally
permissible legislative action affecting the right. So long as the possibility
of' its being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly void." The wide reach of this
principle appears to have been circumscribed to some extent in a later decision
of this Court in R. M. D. Chamarbaugwalla v. The Union of India (2).
In that case the constitutionality of ss. 4
and 5 of the Prize Competitions Act (42 of 1955) was challenged on the ground
that prize competition' as defined in s. 2(d) of the Act included not merely
competitions that were of a gambling nature but also those in which success
depended to a substantial degree on skill. This Court, having regard to the
history of the legislation, the declared object thereof and the wording of the
statute, came to the conclusion that the competitions which were Sought to be
controlled and regulated by the Act were only those competitions in which
success did not depend to any substantial degree on skill.
That conclusion was sufficient to reject the
contention raised in that case; but even on the assumption that (1) [1950]
S.C.R. 759.
(2) [1957) S.C.R. 930.
839 prize competition as defined in s. 2(d)
of the Act included those in which success depended to substantial degree on
skill as well as those in which it did not so depend, this Court elaborately
considered the doctrine of severability and laid down as many as seven rules of
construction. On the application of the said rules it was held that the
impugned provisions were severable in their application to competitions in
which success did not depend to any substantial degree on skill.
The foregoing discussion yields the following
results: (1) " Public order " is synonymous with public safety and
tranquillity : it is the absence of disorder involving breaches of local
significance in contradistinction to national upheavals, such as revolution,
civil strife, war, affecting the security of the State; (2) there must be
proximate and reasonable nexus between the speech and the public order; (3) s.
3, as it now stands, does not establish in most of the cases comprehended by it
any such nexus; (4) there is a conflict of decision on the question of
severability in the context of an offending provision the language whereof is
wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislation; one view is that it cannot be split
up if there is possibility of its being applied for purposes not sanctioned by
the Constitution and the other view is that such a provision is valid if it is
severable in its application to an object which is clearly demarcated from
other object or objects falling outside the limits of constitutionally
permissible legislation; and (5) the provisions of the section are so
inextricably mixed up that it is not possible to apply the doctrine of severability
so as to enable us to affirm the validity of a part of it and reject the rest.
It is not necessary in this case to express
our preference for one or other of the foregoing decisions. Assuming that the
summary of the rules of construction given in the last of the cases cited supra
are correct and exhaustive, we are not satisfied that in the instant case the
impugned section with the 107 840 omissions suggested by the learned Advocate
General could, wholly or to any extent, be salvaged. The words of the section
with the suggested omissions continue to suffer from the same vice they are
subjected to without the said omissions. The Suggested omissions from the
section only exclude individuals from the operation of the section and confine
it to a class of persons and in other respects it is not freed from the defects
already pointed out by us. In R. M. D. Chamarbaug walla's Case (1) the
difference between two classes of competitions, namely, those that are of
gambling nature and those in which success depends on skill, is clear-cut and
has long been recognized in legislative practice. But in the present case it is
not even possible to predicate with some kind of precision the different
categories of instigation falling within or without the field of constitutional
prohibitions. The constitutional validity of a section cannot be made to depend
upon such an uncertain factor. Whether the principle of the first two decisions
is applied or that of the third is invoked, the constitutional validity of the
section cannot be sustained.
We, therefore, hold that s. 3 of the Act is
void as infringing Art. 19(1)(a) of the Constitution. The, entire section
therefore must be struck down as invalid. If so, the prosecution of the
respondent under that section is void.
The learned Advocate General made an
impassioned appeal to persuade us to express our view that though the present
section is void on the ground that it is an unreasonable restriction on the
fundamental right, in the interests of public order the State could legitimately
re-draft it in a way that it would conform to the provisions of Art. 19(2) of
the Constitution. It is not this Court's province to express or give advice or
make general observations on situations that are not presented to it in a
particular case. It is always open to the State to make such reasonable
restrictions which are permissible under Art.
19(2) of the Constitution.
In the result, the appeal is dismissed.
Appeal dismissed.
(1) [1957] S.C.R. 930.
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