Santokh Singh Vs. Delhi Administration
[1973] INSC 31 (20 February 1973)
DUA, I.D.
DUA, I.D.
ALAGIRISWAMI, A.
VAIDYIALINGAM, C.A.
CITATION: 1973 AIR 1091 1973 SCR (3) 533 1973
SCC (1) 659
ACT:
Constitution of India, Article 19(1)
(a)-Punjab Security of State Act (No. 12 of 1953)-Sec. 9 whether violates
Article 19(1)(a)-Speech or statement which "tends to over throw the
State"-whether restriction unreasonable-Constitution of India, Art.
136-Appeal by Special Leave on a pure question of law effecting constitutional
validity of an Act-whether can be raised for first time in Supreme Court-Scope
of appeal on special leave-whether appellant can claim adjudication on merits
as of right.
HEADNOTE:
The appellant was prosecuted under section 9
of the Maintenance of Punjab Security of State Act for addressing a public
meeting in which it was alleged that he had incited the defence employees to
commit offences prejudicial to security of the. State or to, the maintenance of
public order. Sec. 9 of the Act prohibits speeches or statements etc. which
have effect of undermining the security of the.
State, friendly relations with foreign
States, public order decency or :morality or which amount to contempt of court,
defamation or. incitement to an offence prejudicial to the security of the
State or the maintenance of public order or which tends to over throw the
State. On perusal of the documents filed u/s. 173 of the Cr.P.C., the
Magistrate cam to the conclusion that the prima facie case was established.
The appellant unsuccessfully challenged the
said interlocutory order before the Sessions Court and then in the High Court.
On appeal by special leave, the appellant raised the question. of
constitutional validity of Sec. 9 of the Act. The appellant contended : (i)
that Sec. 9 of the Punjab Security of State Act was violative of the
fundamental right guaranteed under Art. 19(1) (a) of the Constitution, and (ii)
in the alternative, the operation of Sec. 9 should be limited only to such
matters as involve incitement to violence or intention or tendency to create
public disorder or cause disturbance to public peace. In dismissing the appeal.
HELD : (i) Except the words "tends to
over throw the State" the rest of the provisions of Section 9 reproduce
the provisions of Art. 19(2) of the Constitution. The prohibition relating to
offending speech, wods or the other publications which tend to over throw the
State clearly fall within the sweep of the expression "incitement to an
offence prejudicial to the security of the State". Restriction, therefore,
is. Prima facie reasonable restriction. [537 C-E] Superintendent of Central
fail, Fatehgarh v. Ram Manohar Lohia [1962] 2 S.C.R. 321, distinguished on
facts.
(ii) Reasonable restrictions in respect of
matters specified in Art. 19(2) are essential for integrated development on
egalitarian. progressive lines of any peace loving civilised society. Art.
19(2) thus saves the constitutional validity of Sec. 9 of the Act. The analogy
between s.124(1)IPC and Sec. 9 of the Act is wholly misconceived and in view of
the comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot be restricted
to those speeches and expressions which incite or tend to incite violence only.
Sec. 9 cannot be interpreted in a restricted L 761 SupCI/73 534 manner Sec.
124(1)IPC was interpreted in Kedarnath Singh v. State of Bihar [1966 Supp. 2
S.C.R. 7691] [539 A-C] (iii) The Supreme Court may allow the question of law
effecting the constitutional validity of an Act for the first time to be
'raised in Supreme Court. In an appeal by special leave under Art. 136 of the
Constitution, the scope, of the appeal is not enlarged after leave and the
appellant cannot as of right claim adjudication on merits. The, Court would not
pronounce its opinion on the merits of the charge framed against the appellant.
[540 C-E]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 197 of 1972.
Appeal by special leave from the judgment and
order date 24th day of February 1972, of the Delhi High Court in Cr. Rev. No.
469 of 1970.
S. C. Agarwala and A. K. Gupta for the
appellant.
D. P. Bhandari and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
DUA, J. This appeal by special leave is directed against the judgment and order
of a learned single Judge of the High Court, of Delhi dated February 24, 1972
rejecting the appellant' revision petition under ss. 430 and 561-A of the Code
of Criminal Procedure. In that revision he had prayed, that the charge framed.
:against him by a Magistrate, First Class, New Delhi on July 3, 1969 under s. 9
of the Punjab Security of State Act (Punjab Act no. 12), 1953 (hereinafter
called the Act) be quashed. The special leave petition originally came up for
preliminary hearing before a bench of this, Court on August 18, 1972 when
notice to show cause was issued. On September 19, 1972 the hearing was again
adjourned for a week to enable the petitioner's counsel to file' a writ
petition. It appears that no writ petition was filed but on September 26, 1972
this Court granted special leave on usual terms. The appeal was also directed
to be heard on the existing paper book with liberty to the parties to file such
additional documents as they wished to file, from the record. The appeal was
directed to be listed for hearing in the second week 'of January, 1973.
Sometime in January, 1973 the appellant presented criminal miscellaneous
petition no. 32 of 1973 seeking permission to urge additional grounds. In that
application the constitutional' Validity of s. 9 of the Act was questioned. The
said section, according to the averment in that Petition, 'infringes the
fundamental., right of speech. guaranteed under Art. 19(1) (a) of the
Constitution.
It is alleged by the prosecution that the
appeal ant had addressed a public meeting of the employees of the Defence Department
on 535 October 9,,1968 and in the course of his speech he had incited the said
employees to commit offences prejudicial to the security of the State, or to
the maintenance of public order. The Magistrate had, on perusal of the
documents filed under s. 1973, Cr. P.C. framed a charge against the appellant
punishable under S. 9 of the Act. According to the judgment of the High Court
the offending portion of the speech which had been delivered in Hindi reads as
follows :
"There will be hunger strike at Chavan
Sahib's kothi No. 1 Race Course Road. If- Chavan Sahib thinks that they will be
in position to crush us with the, assistance of C.R.P. and B.S.F. then that is
his misunderstanding.
Chavan Sahib when the Britishers had to leave
this country then the same military and police will push you out. Because these
children of military and. police personnels are also hungry they also require
bread for eating.
Therefore, the day has to come when after
their unity these workers will send you out. Comrades the Government suffered
the moral death when it promulgated the ordinance.
Because we had no idea of starting any
violance, when we demanded bread, clothes and house. This struggle of ours will
continue.
If Government servants die then other
labourers. will take this struggle ahead. One thing more I want to tell you
that if there will be no celebration of Diwali in the house of our fifty
thousand people, then there shall be darkness in the houses of these ministers.
I want to tell you Chavan Sahib that if your
repression continued in the same way, one Udham Singh will be born amongst
these labourers who will not live you live as Udham Singh killed Dyre after
going to London.
Annexures I and II attached to the petition
under Art. 136 of the Constitution stated in para 4 thereof to be the English
translation of the statements of the two police officers on the basis of which.
the charge sheet had been filed in court contained a couple of more' sentences
which do appear to be of some importance. But we consider it unnecessary for
our present purposes to refer to them. The High Court, considered the part of
the speech reproduced above and after referring to the decisions of this Court
in State of Bihar v. Shrimati Shailbala Devi(1), Rain Manohar Lohia v. State of
Bihar ( 2 ) and Sudhir Kumar Saha v. The Commissioner of Police(3) dismissed
the revision holding that prima facie the remarks made by the appellant in his
speech amounted to an offence under s. 9 of the Act. It was, however, added
that it was open to the petitioner either by cross-examination of the
prosecution (1) A.I.R. 1952 S.C. 320. (2) A.I.R. 1966 S.C. 740.
(3) [1970] 1 S.C.C. 149.
536 witnesses or by adducing evidence in
defence to show that in the circumstances under which these remarks were made
they did not amount to an incitement to an offence prejudicial to the security
of the State or the maintenance of public order. The High Court felt that at
that stage it could not be said.that there was no prima facie case against the
petitioner under S. 9 of the Act.
In this Court Shri S. C. Agarwal questioned
the vires of S. 9 of the Act, contending that this section is violative of the
fundamental right guaranteed by Art. 1 0 ( 1 ) (a) of the Constitution. No
doubt, this point was not raised in the High Court and in this Court also it
was specifically sought to be raised only in the subsequent applications
presented in January, 1973 but as the speech in question was itself sought in
para 5 of the petition for special leave to be protected by Art. 19(1) (a) and
as it was a pure question of law raising the constitutionality of s. 9 of the
Act we permitted the counsel to raise it.
Section 9 of the Act reads "9.
Dissemination of rumours, etc.Whoever (a) makes any speech, or (b) by words,
whether spoken or written, or by signs or by visible or audible representations
or otherwise publishes any statement, rumour or report, shall, if such speech,
statement, rumour or report undermines the security of the State, friendly
relations with foreign States, public order, decency or morality, or amounts to
contempt of Court, defamation or incitement to an offence prejudicial to the
security of the State or the maintenance of public order, or tends to overthrow
the State, be punishable with imprisonment which may extend to three years or
with fine or with both." This section on its own plain reading taken
within its fold all the objectionable matters which had been taken by sub- Art.
(2) of Art. 19 out of the guaranteed freedom of speech and expression Protected
by cl. (a) of Art. 19(1). In order to fully understand the freedom of speech
and expression guaranteed by the Constitution it is necessary to reproduce Art.
19 (1) (a) and (2):- Right to Freedom 19(1) AR 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 537 State from
making any law, in so far as such law imposes reasonable restriction on the
exercise of the right conferred by the said sub-clause in the interests of the
sovereignty and integrity of India, 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".
It may appropriately be pointed out here that
sub-Art. (2) was amended in 1963 so as to include in the limitation contained
therein reasonable restrictions in the interest of the sovereignty and
integrity of India. This limitation was not in this sub-Article in 1953 but as
it does not affect the question raised in this case we need say nothing more
about it.
Reading s. 9 of the Act and Art. 19(2) of the
Constitution it is obvious that the only matter specifically contained in s. 9
in addition to those stated in Art. 19(2) relate to the offending speech, words
or other publications which "tends to overthrow the State". Now this
matter would clearly also fall within the sweep of the expression
"incitement to an offence prejudicial to the security of the State" contained
in s. 9 and within-Art. 19(2) where it speaks of "reasonable restrictions
.... in the interest of.... the security of the State". Anything tending
to overthrow the State must necessarily be prejudicial to the security of the
State and, therefore, a law can be made placing reasonable restrictions on the
right of freedom of speech and expression in this respect in the interests of
security of State. Prima facie, therefore, s. 9 clearly falls within the
express language of Art. 19(2).
On behalf of the appellant great stress was
laid on Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia(1) where
this Court struck down as unconstitutional s. 3 of the U.P. Special Powers Act
(U.P. Act 14 of 1932).
That section reads "3. Whoever by word,
either spoken or written or by signs, or by, visible representations or
otherwise, instigates, expressly or by implication, any person or class of
persons not to pay or to defer payment of 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." On the face of
its plain language this section is materially different from s. 9 of the Act.
It therefore does not require. elaborate argu- (1) [1962] 2 S.C.R. 321.
538 ment for distinguishing this decision.
Section 3 of the U.P. Act is clearly hit by. Art. 19 (1) (a) and can on no
reasonable or rational argument be saved by Art., 19(2).
There being absolutely no similarity between
that section and s. 9 of the Act with which we are concerned, the ratio of that
decision cannot serve as a precedent for invalidating s. 9 of the Act. The
appellant's learned counsel then drew our attention to Kedarnath Singh v. State
of Bihar (1) in which ss. 12A and 505, I.P.C. were held to be in the interest
of public order and within the ambit of constitutional limitations contemplated
by Art. 19 ( 1 read with Art. 19 (2). On analogy of s. 124A as construed in
than decision it was contended that in order to bring s. 9 of the Act within
the constitutional limits of Art. 19 (2) it must similarly be construed
narrowly so that the fundamental, freedom of speech and expression is not
'unduly restricted. The operation of s. 9 of the Act, it was sub- mitted,
should be limited only to such matters as involve incitement to violence. or
intention or tendency to create public disorder or cause disturbance of public
peace. The fundamental right guaranteed by Art. 19 (1) (a) and the interest of
public order protected by Art. 19 (2) according to Shri Agarwal's submission,
must be, properly adjusted and a correct balance struck between two.
In our opinion, the principle governing the
construction of Art. 19 ( 1 ) (A) read with Art. 19 (2) is well crystallised by
now in various decisions of this Court and it is unnecessary to cover the whole
round over again by going through them extensively.
We of course agree with Shri Agarwal that the
fundamental right guaranteed by Art. 19(1) (a) and the interest of public
protected by Art. 79(2) must be. properly adjusted and reasonable balance
struck between the two. There can be no dispute that there is no such thing as
absolute of unrestricted freedom of speech and expression wholly free from
restraint for that would amount to uncontrolled licence which would tend to
lead to disorder and anarchy. The right to freedom of speech and expression is
undoubtedly a valuable and cherished right possessed by a citizen in our
Republic. Our governmental set up being elected, limited and responsible we
need requisite freedom of animadversion, for our social interest ordinarily demands
free propagation of views. Freedom to think as one likes, and to speak as one
thinks are, as a rule, indispensable to the discovery and spread of truth add
without free speech discussion may well be futile. But at the same time we can
only ignore at our peril the vital importance of our social interest in, inter
alia, public, order and security of our State. It is for this reason that our
Constitution has rightly attempted to strike a proper balance between the
various competing social in- (1) [1966] Supp. 2 S.C.R. 769.
539 terests. It has permitted. imposition of
reasonable restrictions on the citizen's right of freedom of speech and
expression in the interest of, inter alia, public order, security of State,
decency or morality and impartial justice, to serve the larger collective
interest of the nation as a whole. Reasonable restriction in respect of matters
specified in Art. 19(2) are essential for integrated development on
egalitarian, progressive lines of any peace- loving' civilised society. Article
19(2) thus saves the constitutional validity of 9 of the Act. The analogy
between s. 124A, I.P.C. and s. 9 of the Act is wholly misconceived and in view
of the comprehensive of Art. 19(2) 'we are unable to restrict s. 9 of the Act
only to those speeches and Expressions which. incite or tend to incite
Violence..
Learned counsel also tried to refer us to
some American decisions for developing the argument that the guaranteed freedom
of speech and expression should be broadly construed but we did not consider it
necessary to go into the American decisions, notwithstanding the fact that in
Express Newspapers (P.) Ltd. v. Union of India(1) it was observed that American
decisions were relevant for the purpose of understanding the scope of Art. 19
(1) (a). In our opinion, it is, hardly fruitful to refer to, the American
decisions particularly when this Court has more than once clearly enunciated
scope and effect of Art. 19 (1) (a) and 19 (2).
The test of reasonableness of the restriction
has to be considered in each case in the light of the nature of the right
infringed, the purpose of the restriction, the extent and the nature of the
mischief required to be suppressed 'and the prevailing social and other
conditions at the time.
There can be no abstract standard or general
pattern of reasonableness. Our Constitution provides reasonably precise,
'general guidance in this matter. It would thus be misleading to construe it in
the light of American decisions given in different context. (Section 9 of the
Act is, in, our view, plainly within the legislative competence of the Punjab
Legislature and it would be for the court in which the appellant is being tried
to decide as to how far the appellant's speech is covered by this section.
Shri Agarwal made a strenuous effort to
persuade us to cons- true the offending portion of the speech as reproduced in
the judgment of the High Court and express our opinion whether- or not the
charge against him has been lawfully framed. The charge reads as under:
"That you, on or about the 9th day of
October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak- in the area of
Delhi Cantt. made a speech at a public meeting organised by Delhi Defence
employees in which you (1) [1959] S.C.R. 12.
540 demanded or caused incitement to an
offence prejudicial to the security of the State or the maintenance of public
order and therein committed an offence punishable I under section 9 of the P.S.
Act and within my cognizance." The appellant, it may be pointed out, had
approached the sessions Court on revision to have this charge quashed.
That court apparently did not agree with the
appellant. He then approached the High Court on revision where also he failed.
The impugned judgment of the High Court does not show any serious legal
infirmity resulting in failure, of justice which should induce this Court to
interfere under Art. 136 of the Constitution. The submission that at this Court
has already granted special leave we: must decide the question of the legality
of the charge on the merits has not appealed to us. Even at the final hearing
of an appeal by special leave this Court has to apply the same test which is
attracted at the preliminary stage, when the leave to appeal is asked for.
After leave the scope of the appeal is not enlarged and even at that stage the
appellant cannot as of right claim adjudication on the merits 'if this Court
feels that there is no grave injustice done to the appellant as a result of any
serious legal, infirmity. We are unable find any such infirmity in the impugned
judgment. The additional factor against our interference in this case in the
interlocutory character of the order sought to be quashed.
We have, however, no doubt that the learned
Magistrate trying the appellant's case will deal with all the points raised
before him oil the merits without being, influenced by the tentative view
expressed by the High Court which the appellant himself invited. We also hope
that this case which relates to a speech said to have been delivered in
October, 1968 and in, which the prosecution was initiated as far back as
January, 1969 when the charge was put into court, would be disposed of with due
dispatch and without avoidable delay. This appeal fails and is dismissed.
S.B.W. Appeal dismissed.
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