Report No. 38
Detailed Note on Section 26, Post Office Act
Section 26 of the Indian Post Office Act raises certain questions of vires, as it empowers the Government,. etc. to intercept, detain or dispose of any postal article or class of postal articles, etc., in a "public emergency" or for preserving public safety or tranquility.
The validity of the section has to be examined with reference to the freedom of speech, and expression guaranteed by Article 19(1)(a) of the Constitution.
Article 19(1)(a) and Article 19(2), as they, now stand, run as follows:-
"19. Protection of certain rights regarding freedom of speech, etc.-(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 sovereignty and integrity of India1, 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."
If the object of the right to freedom of speech is to prevent public authorities from assuming control of the minds of the people, then it is obvious that section 26 comes into conflict with the right. Freedom of speech must imply freedom of effectively conveying one's views2. The interception of a letter means a break in this freedom, as it hampers the free and uninhibited communication of one's views. Therefore, section 26 does impose a restriction on the freedom guaranteed by Article 19(1)(a) of the Constitution.
Now, in ordinary times, pre-censorship is incompatible with the freedom of expression3 at least unless there are reasonable safeguards4. The power of interception is analogous to censorship, as it permits a specified authority to determine what shall or shall not pass through the mails and, therefore, requires strong justification for its validity. That validity can be derived, if at all, only from Article 19(2), which enumerates the permissible sources of restriction.
1. See the Constitution (Sixteenth Amendment) Act, 1963.
2. Cf. Romesh Thappar v. State, AIR 1950 SC 124, which was referred to by the Privy Council in Oliver v. Buttigleg, (1966) 1 All ER 459 (PC) (Case from Malta): (1966) 3 WLR 310 (320).
3. Cf. Express Newspaper v. Union of India, AIR 1958 SC 573.
4. Virendra v. State, AIR 1957 SC 806 (901), para. 12.
The next question is, whether the restriction is saved by Article 19(2), that is to say, whether the restriction, is-
(i) reasonable, and
(ii) in the interest of one or more of the permissible heads specified in Article 19(2).
In coming to a decision on this question, one has to bear in mind several points, chief amongst them being
(i) the situation in which the power of interception can be exercised;
(ii) the authorities by whom the power can be exercised;
(iii) the articles in respect of which it can be exercised;
(iv) the nature and effect of the power; and
(v) the procedure for the exercise of the power.
As regards the situation, it is described in the section as one of "public emergency" or "public safety or tranquillity". The former-"public emergency" - will require detailed treatment.
Regarding the authority, the Central Government or the State Government or any officer specially authorised by either of them can exercise this power by a written order. There is, thus, delegation, no doubt, but that by itself does not appear to be a fatal defect. The provision for delegation does not seem to be unreasonable in itself. The provisions of the section are attracted only in an emergency, and the initial judge of the emergency must, often, be an officer of the locality1-2.
1. Cf. Babulal v. State, (1961) 3 SCR 423: AIR 1961 SC 884 (889), para. 22.
2. See also Veerendra v. State, AIR 1957 SC 196.
As regards articles, any postal article or class of description of postal articles in course of transmission by post can be interfered with. This certainly includes letters and newspapers and books.
As regards the nature and effect of the order, the articles can be-(i) intercepted, (ii) detained, or (iii) disposed of in such manner as the authority concerned may direct.
As regards procedure, there is no provision for judicial review, apparently because the power is to be exercised in a public emergency or in the interest of the public safety or tranquillity.
Bearing in mind this analysis of the section, we may proceed to examine in detail the substantive as well as procedural aspects of the section.
The procedural aspect may be disposed of first. The section does not lay down any hearing, etc.1, but that not be conclusive as regards the validity of an emergency law2. In judging the reasonableness of a restriction, the extent and urgency of the evil sought to be remedied thereby, disproportion of the imposition, and the prevailing condition at the time, etc., have all to be considered3.
1. Basu Commentary on the Constitution, (1965), Vol. I, p. 671.
2. Cf. Babulal v. State, (1961) 3 SCR 423: AIR 1961 SC 884 (889), para. 22.
3. Cf. State of Madras v. V.G. Row, AIR 1952 SC 196.
We may now consider the substantive aspects.
In this connection, the situation in which, the power under section 26 can be exercised is described as one of "public emergency" and "public safety or tranquillity". These will have to justify themselves.
It is from this angle that the matter is to be viewed, and, though in a substantial number of cases, the power may not be abused, yet if it is capable of being exercised in a situation not expressly permitted by the.Constitution, it may require modification. We have, therefore, to consider in detail whether the power is confined to the permissible heads.
Before the First Amendment to the Constitution, under Article 19(2), the only permissible head of restriction on the freedom of speech and expression (so far as is relevant for the present purpose) was "security of the State". In Romesh Thappar v. State of Madras, 1950 SCR 594: AIR 1950 SC 124 (128), para. 10, the ban imposed by the Government of Madras under section 9(1A) of the Madras Maintenance of Public Order Act, 1949, on the entry and circulation in the State of a journal called the "Cross Roads" was declared to be invalided, on the ground that the Constitution had placed in a distinct category those offences against public order which aimed at undermining the security of the State or overthrowing it, and made their prevention the justification for legislative abridgement of freedom of speech and expression.
Nothing less than endangering the foundation of the State or threatening its overthrow could justify curtailment of the right to freedom of speech and expression. The Supreme Court further observed, "The Constitution thus requires a line to be drawn in the field of public order or tranquillity, marking off, more or less 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 peace of purely local significance, treating for this purpose the difference in degree to be a difference in kind."
Therefore, according to this decision "public order" is to be classified into two categories-one major and the other minor, that is to say-
(a) major offences affecting the security of the State; and
(b) minor breaches of peace of local significance. This decision was followed in Brij Bhushan's cases.
1. Brij Bhushan v. Shailja of Delhi, AIR 1950 SC 129.
It is well-known, that by the First Amendment to the Constitution of India, minor categories of public order were brought in After the First Amendment, the Supreme Court examined the scope of Article 19(2) in 1952, and upheld the validity of section 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931, relating to words etc., which incite to, etc., the commission of any offence of murder or a cognizable offence involving violence1.
1. State of Bihar v. Shailja Bala, AIR 1952 SC 329.
Thereafter, in 1960, Mr. Justice Subba Rao (as he was then) had occasion to interpret the expression "public order". While examining the provisions of the U.P. Special Powers Act, 1932, he observed, "But in India under Article 19(2) this wide concept of public order is split under different heads. It enables the imposition of reasonable restrictions on the exercise of the right to freedom of speech and expression in the interest 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 indicate that though sometimes they tend to overlap they must be ordinarily intended to exclude each other. Public order is something demarcated from the others. In that limited sense, particularly in view of the history of the amendment, it can be postulated that public order is synonymous with public peace, safehj and tranquillity".1
1. Superintendent, Central Prison v. Dr. Rain Manohar Lohia, AIR 1960 SC 633 (639).
A later decision of the Supreme Court reiterates this view1.
1. O.K. Ghosh v. Joesph, AIR 1963 SC 812 (814, 815), para. 10.
It is true, that the expression "in the interest of" in Article 19(2) is wider than the expression "for the maintenance of", so that a law which is not designed directly to protect the general public against any particular evil may be valid if it is enacted in the interest of the public order or the general public, as the case may be.1
1. Cf. Ramji Lal v. State of Uttar Pradesh, AIR 1957 SC 620 (622), para. 7, referring to Debi Saran v. State, AIR 1954 Pat 254.
This amplification, however, does not "ignore the necessity for an intimate connection between the Act and the public order sought to be maintained by the Act1."
1. Superintendent, Central Prison v. Dr. Rani Manohar Lohia, AIR 1960 SC 633.
As was observed by the Supreme Court6. "The limitation imposed in the interest of public order, to be a reasonable restriction, should be one which has a proximate connection or nexus with public order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with the public order".
In short, the serious and grave forms of public disorder which are calculated to endanger the security of the State fall under "security of State", and the relatively minor breaches of the peace of purely local significance fall under "public order1". Therefore, national upheavals, such as revolutions, civil strikes, and war, may be covered by "security of the State", and local disorders may be covered by "public order.2"
1. Cf discussion in the judgment of Patanjali Sastri J. in Romesh Thappar v. State of Madras, 1950 SCR 594 (601): AIR 1950 SC 124.
2. Basu Commentary on the Constitution, (1965), Vol. 1, p. 671, assumes that section 26 would be covered by "in the interest of public order".
In a recent case before the Supreme Court1, the meaning of the expression "maintenance of public order" in rule 30(1)(b) of the Defence of India Rules, 1962, and section 3 of the Defence of India Act, 1962, was considered in detail, and the expression "maintenance of law and order" (which was employed in the detention order in issue in that case) was also considered. According to the majority view2, "public order" was narrower than "maintenance of law and order".
According to the analysis contained in one of the judgments3, there are three concentric circles. The expression "law and order" represents the largest circle, within which is the next circle representing "public order", and the smallest circle represents "security of the State." By using the expression "maintenance of law and order", the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules.
1. Dr. Rain Manohar Lohia v. State of Bihar, AIR 1966 SC 740 (745, 758, 761), paras. 8, 52 and 66 (May, 1966).
2. Sarkar, Hidayatullah and Bachawat JJ.
3. Judgment of Hidayatullah J. (on behalf of himself and Bachawat J.).
Now, the expression "public emergency" in section 26, Post Office Act, appears in addition to the words "public safety or tranquillity", which also are mentioned in the section. It is therefore, obviously intended for cases other than those covered by public safety or tranquillity-in other words, for a situation other than local disorder. It takes in national upheavals which affect the security of the State. But, apparently, it also takes, in emergencies of a public nature which might have nothing to do with the security of the State (or with public order), and it is here that it seems to go beyond the Constitution.
"Emergency", it may be noted, may be of an economic character also1.
1. As to economic emergencies, see Helvering v. Davis, (1937) 301 US 6.19: 81 L Ed 1307, and contrast A.G. for Canada v. A.G. for Ontario, 1937 AC 355 (PC).
There is another aspect of the matter. The class of articles which can be intercepted is not linked up with "public order", etc., so that the section sweeps within its ambit even activities constituting a legitimate exercise of the freedom of speech1-2. There is no principle to guide the officer concerned-except that of "emergency" etc. which itself goes beyond the Constitution,-with the result that the restriction may not be regarded as reasonable3.
1. See generally,-
(i) Virendra v. State, AIR 1957 SC 896.
(ii) Hamdard case, AIR 1960 SC 554 (decision as to section 8 of the Drugs, etc., Act).
2. Cf. Lovell v. Griffin, (1938) 308 US 444, and Basu Commentary on the Constitution, (1965), Vol. 1, p. 651.
3. Cf. R.M. Seshadri v. Dist. Municipality, Tanjore, AIR 1954 SC 747 (748), para. 4.
We may examine in detail the meaning of the expression "emergency" as explained in some decisions1.
1. For legislative definitions, see Stroud's judicial Dictionary, (1952), Vol. 2, op. 940.
It has been observed, that. the word "emergency" in section 2(1)(a) of the Compensation (Defence) Act, 1939 (2 & 3 Geo. 6, C. 75), may require different meanings to be attributed to it, having regard to the power in right of which possession was taken1.
2. (1943) 1 All ER 672 (675), approved on other ground (1944) 1 All ER 60.
The expression "emergency", as used in Admiralty directions relating to vessels in convoy, means the sudden occurrence of facts causing an apprehension of danger or difficulty1.
1. The Larehbank, 1943 AC 299.
The expression "present emergency" in the Eating and Valuation (Postponement of Valuations) Act, 1940 (3 & 4 Geo. 6, C. 12), section 1(4), means the World War, 1939¬1945, and its concomitants, such as the blackout1.
1. Conservative Club v. Westminster Assessment Committee, (1943) 1 All ER 104 (106), affirmed in Westminster Assessment Committee v. Conservative Club, 1944 AC 55.
Thus, "emergencies" may be of various types, that is to say, not only of imminent war or a rebellion or internal subversion, but also natural catastrophes, and economic emergencies. The last mentioned (economic emergencies) do not necessarily fall under "security of the State1".
1. For materials as to emergency, see
(i) Holland, "Emergency Legislation in the Commonwealth", (1950) 13 Current Legal Problems 148;
(ii) Note "Civil Liberties in Great Britain and Canada during the War", Vol. 55, Harvard Law Review 1006.
(iii) M.C. Setalvad War and Civil Liberties (1946).
(iv) "The War and the Constitution", Vol. 4, Modem Law Review 82.
(v) Jennings Rule of Law in Total War, 50 Yale Law Journal 365.
(vi) Rossiter Constitutional Dictatorship, p. 177.
In England, under the Emergency Powers Act, 19201, an emergency can be declared by the Crown whenever it appears that the supply and distribution of food,-water, fuel or light or the means of commutation or generally the essentials of life of the community or any substantial portion of it are in danger etc2. The Act was invoked at the time of the coal strike of 1921, the threatened strike in 1924 and the general strike in 19263.
1. Emergency Powers Act, 1920 (10 & 11 Geo. 5, C. 55).
2. See also the Emergency Powers (Defence) Act, 1939.
3. See also the orders passed in 1966.
Similar provision is found in the emergency laws of other countries, for example, in the Emergency Powers Ordinance of Northern Rhodesia1.
1. Section 2(1), Emergency Powers Ordinance of Northern Rhodesia, discussed in (1960) 13 Current Legal Problems 148, 162.
In a Lahore case10, the court followed the dictionary meaning of the word "emergency" as given in Webster's Dictionary, which is, "An unforeseen occurrence or combination of circumstances which calls for immediate action for remedy". The court observed,
1. Des Raj v. Emp., AIR 1930 Lah 781 (789) (regarding the Lahore Conspiracy Case Ordinance, 1930) (decision under section 72 of the Government of India Act, under which, in cases of "emergency", the Governor-General could make Ordinances for the peace and good government of India.). - that an emergency may result from an unforeseen combination of circumstances, and that this combination may not take place all at once, but gradually. An immediate action may be rendered necessary when the culminating point is reached.
As to Ordinances under the Indian Constitution or under the Government of India Act, 1935, under-mentioned cases1-2-3 may be seen.
1. Joan Prasanna v. Province of West Bengal, AIR 1949 Cal 1 (FB).
2. Emp. v. Sibnath, AIR 1945 PC 156.
3. Lakhinarayan, AIR 1950 FC 59.
Section 26, thus, in view of the wide meaning of "emergency", may operate so as to abridge the freedom of speech and expression for a purpose not authorised by Article 19(2), and is, to that extent, likely to conflict with the Constitution.
There are no decisions as to the validity of section 26. In a Supreme Court case1, the validity of the pre-censorship on newspapers under section 144, Criminal Procedure Code was considered, but the exact issue that is now being discussed was not dealt with.
1. Babulal v. State, (1961) 5 SCR 423: AIR 1961 SC 889.
The next question is whether the section should be amended on this point. It is true, that one principle of construction of statutes is, that if the impugned provisions of a law can come within the constitutional powers of the Legislature by adopting one view of the words of the impugned section or Act, the court will take that view of the section and limit its application accordingly, in preference to a view which "would make it unconstitutional on another interpretation of the words in question.1-2-3
1. See Hindu Women's Rights to Property Act (in re:), 1941 FCR 12 and R.M.D. Chamarbaugwala v. Union of India, 1957 SCR 930: AIR 1957 SC 628 (633).
2. Kedar Nath v. State of Bihar, 1962 Supp 2 SCR 769: AIR 1962 SC 955 (Validity of section 124A, Indian Penal Code, upheld).
3. And see the American authorities discussed in the dissenting judgment of Kapur J. in Amar Nath Bali v. State, AIR 1951 Punj 18 (24-26), paras. 36-46.
It is possible, that, on this principle, the scope of the expression "public emergency" in section 26(1) will be narrowed down by the courts, and if that is done, the validity of the section (in the present context) may be saved.
Since, however, an opportunity has now arisen for revising the Act, it seems desirable that the matter be put beyond controversy1, particularly in view of the rather wide meaning of the expression "public emergency".
1. Examples of such controversies are:-
(i) Bharati Press (in re:), 1951 Pat 12 (21, 28), para. 13 and 33(SB), [section 4(1), Press Emergency Power Act, 1931]
(ii) State v. Hariprasad, AIR 1952 Sau 25 (28), para. 6, [section 4(1)(d), Press Emergency Power Act, 19311.
(iii) Bhanushankar v. State, AIR 1952 Sau 57 (Ft), [section 7(1), Press Emergency Power Act, 1931].
(iv) Pattamal v. Chief Presidency Magistrate, AIR 1951 Mad 950, [section 3(1), Press Emergency Power Act, 1931].
though the later Supreme Court decisions cited -e.g. Kedar Nath-enable a validating construction.
The form in which the section should be amended has been, considered in detail. One alternative is to limit section 26 to only two grounds ("security of the State" and "public order"). The other alternatives is to mention, in the section, all the grounds specified in
Article 19(2)1-2. On the one hand, it is not likely that the power under the section will be required to be exercised except in the interests of "security of the State" or "public order". On the other hand it would be better to adopt the second alternative, which is wider; to cover unforeseen situations.
1. Cf. section 5B(1), Cinematograph Act, 1952 (37 of 1952).
2. Cf also section 11(2)(a)(b)(t)(u)(v), Customs Act, 1962 (52 of 1962).
Section 26(2)-Recommendation.-Sub-section (2) of section 26 may now be considered. It provides, that if any doubt arises as to the existence of a public emergency or as to whether any act done under section 26(1) was in the interest of public safety and tranquillity, a certificate of the Central Government or of the State Government, as the case may be, shall be conclusive proof on that point. This has the effect of totally barring judicial review.
Now, if section 26 is to be modified so as to narrow down its present width1, then sub-section (2) loses much of its practical utility, and should be omitted. Even if the expression "public emergency" is retained, sub-section (2) cannot bar judicial review, when a constitutional question arises, and should be omitted on that ground also.
1. See decision relating to section 25(1).
Analogous laws-Section 5, Telegraph Act, and provision in Wireless Telegraphy Act.-There is a provision similar to section 26(1) in sections of the Indian Telegraphs Act1-2. There does not seem to be a similar provision in the Wireless Telegraphy Act3, but there is a power under section 10(iii) of that Act regarding conditions governing the issue of licence of wireless telegraphy apparatus under the Act.
1. Section 5 of the Indian Telegraphs Act, 1885 (13 of 1885).
2. Cf section 52, Telegraph Act, 1852 (English Act).
3. The Indian Wireless Telegraphy Act, 1933 (17 of 1933).
The section in the Indian Telegraphs Act was considered in detail by the Press Commission.
The following passages from the Press Commission's Report1 may be quoted:-
"1063. Indian Telegraph Act.-Section 5 of the Act enables Government, or any officer specially authorised by Government, on the occurrence of any public emergency or in the interests of public safety (a) to take temporary possession of any telegraph established, maintained or worked by any person licensed under the Act, and (b) to order that any message or class of messages from any person or class of persons or relating to any particular subject brought for transmission by or transmitted or received by any telegraph shall not be intercepted or detained or shall be disclosed to Government or the officer specially authorised. If any doubt arises as to the existence of public emergency or whether the act done is in the interest of public safety, a certificate of Government shall be conclusive proof on the point.
1064. In so far as the provisions of this section can come into force only on the occurrence of any emergency or in the interest of public safety, they cannot be said to be not in consonance with the Freedom of the Press and outside the scope of permissible legislative restrictions under Article 19(2) of the Constitution.
1. Press Commission of India Report, (1954), Part 1, pp. 406-407, paras. 1063-1071.
1065. As regards the actual operation of the Act, the Press Laws Enquiry Committee have stated as follows:-
"Our recommendation in this behalf is, therefore, that the Central and Provincial Governments should continue to have the power of telegraphic interception, for use on special occasions of the occurrence of a public emergency or in the interest of the public safety provided the orders of the Minister in charge are invariably obtained, that delegations of this power should be the exception rather than the rule, that delegations should be for a specified and short period and not general and that clear instructions should be issued by Government to the specially authorised officers in order to ensure that these powers are not abused.
Sub-section (2) of section 5 makes a certificate of the Central or Provincial Government conclusive on the question about the existence of a public emergency or the needs of public safety. As a further safeguard against possible abuse of these powers by subordinate officers we further recommend that provision should be made in the section itself, for example by the addition, of sub-section (3) that the orders passed by specially authorised officers of Government shall be reported to the Central or Provincial Government as that case may be in order to enable the responsible Minister to judge the proper exercise of the powers and the order passed in individual cases.".
1066. This recommendation of the Press Laws Enquiry Committee is supported by the Marathi Patrakar Sangh. 'The Indian Federation of Working Journalists have not indicated in what direction the law requires amendment. The A.I.N.E.C. have pointed out that powers under the Act have been exercised, even where there is no emergency, under pressure from the local Executive. All the State Governments who have replied to our question on this subject have urged that, such powers are necessary in times of emergency and in the interest of public safety.
1067. The emergency contemplated is not necessarily wartime emergency and the section in effect contemplates imposition of censorship on dissemination of news even during peace time under certain conditions. We support the Press Laws Enquiry Committee's recommendations in this behalf.
1068. Sea Customs Act, 1878.-Section 19 of the Sea Customs Act, 1878, enables the Central Government from time to time, by notification in the official gazette, to prohibit or restrict the bringing or taking by sea or by land of goods of any specified description into, or out of India across any customs frontiers. This section is not limited in its operation to any emergency or in the interest of public safety. In so far therefore as it prohibits dissemination of news, otherwise than in relation to an emergency or public safety, it appears not to be in consonance with the Freedom of the Press of Article 19(2) of the Constitution.
In case, however, of newspapers and periodicals, which are liable to forfeiture under section 99A of the Criminal Procedure Code, or any other matter which is liable to affect the security of the State, this section should continue to apply. It would be anomalous to ban the production of that type of literature in this country, but permit its import.
1069. Sections 181A to 181C authorise detention and further disposal of any package suspected to contain any newspaper or any document the publication of which is punishable under section 124A, Indian Penal Code. As we have already stated, this section, as it stands, appears to us to be inconsistent with the Freedom of the Press and to be ultra vires of the Constitution. If that view is accepted these sections will have to be repealed or the references to section 124A will have to be replaced by references to the new section 121B, Indian Penal Code, which is suggested for enactment.
1070. Indian Post Office Act, 1898-Section 25 is contingent on the validity of section 19 of the Sea Customs Act or any other similar law. The remarks on that section would also apply to section 25 of the Post Offices Act.
1071. Section 26(1) is on a par with section 5(1) of the Indian Telegraph Act, and our remarks under that section would also apply to this section of the Post Office Act.".
The recommendations of the Press Commission may be thus summarised:-
(i) The Central and State Governments should continue to have the power of telegraphic (or postal) interception for use on special occasions of the occurrence of a public emergency or in the interests of public safety, provided the orders of the Minister in charge are invariably obtained;
(ii) Delegations of this power should be sparingly made;
(iii) Delegations, when made, should be for a specified and short period, and not general;
(iv) Clear instructions should be issued by the Government to specially authorised officers in order to ensure that the power is not abused;
(v) To prevent abuse of powers by the subordinate officers, a provision should be made in the section to the effect, that the orders passed by the specially authorised officers of Government shall be reported to the Central or the State Government, as the case may be, so that the responsible Minister may judge the proper exercise of the powers and the orders passed in individual cases.
Section 5 of the Telegraph Act has not so far been amended1. A Private Member's Bill to delete section 5(1)(b) was introduced in the Lok Sabha2.
1. Section 5 of the Telegraph Act has not been amended. Suitable action can, however, be taken by making a provision in rules under section 7(2)(b).
2. Yash Pal Singh's Bill to amend the Indian Telegraph Act (Lok Sabha, 1965).
It would appear1, that it has not been possible to accept the recommendation of the Press Commission relating to the amendment of section 5, Telegraph Act, and section 26, Post Office Act.
1. See the statement placed he Table of Lok Sabha on 18th February, 1964, as to the factual position regarding implementation of the Press Commission's recommendations (Items 57 of the Statement-"Censorship in Emergency"). It is an enclosure to S.No. 106, Law Commission's file No. F. 1(1)/6262. LC.
There is a provision for interception in rule 23 of the Defence of India Rules, 1962, quoted below:-
"23. Power to intercept and censor postal articles. (1) Notwithstanding anything contained in section 26 of the Indian Post Office Act, 1898 (6 of 1898), any person appointed by the Central Government to be a censor may-
(a) order that any postal article or class or description of postal articles in course of transmission by post shall be intercepted or detained or shall be disposed of in such manner as the censor, may direct;
(b) open and examine the contents of any postal article, and delete, destroy or remove any part thereof which the censor considers to be prejudicial to the public safety or interest or to the defence of India or civil defence or the efficient conduct of military operations.
"(2) Any person who delivers any postal article for transmission, either by an indirect route or otherwise, in such a manner as is calculated to evade examination by a censor, shall be punishable with imprisonment which may extend to five years, or with fine, or with both.".
Position in England.-The expression "public order" seems to have been used in England in two Acts, namely, the Theatres Act, 18431, and the Public Order Act, 19362. The former Act empowers the Lord Chamberlain to prohibit the performance of any stage play whenever he has reason to believe that such performance would go against good manners, decorum or the preservation of public order. The latter Act was intended to prohibit, inter alia, the use of threatening, abusive or insulting words or behaviour in a public place, etc. with interest to provoke a breach of the peace, etc.
1. Theatres Act, 1843 (6 & 7 Vict., C. 68), section 9.
2. Public Order Act, 1936 (1 Edw. 8 & 1 Geo. 6, C. 6).
Position in U.S.A.-In the U.S.A., "public order" has figured in certain decisions1-2-3-4-5. The net result of these decisions seems to be that the State may punish speeches and expressions of opinion tending to incite an immediate breach or the peace or riot, regulate the places and hours of public meetings and discussions, and the use of public streets in relation to the exercise of the right to freedom of speech, etc.
1. Feiner v. New York, (1951) 340 U.S. 315 (Speech which violate public peace and order).
2. Cantwell v. Connecticut, (1940) 3'10 US 296 (308) (Statute of Connecticut requiring previous permission of Secretary of Public Welfare Council before soliciting contributions for a religious cause,-held violative of 14th and First amendments, as amounting to a previous restraint which was not needed, to deal with any clear and present danger.
3. Chaplineky v. New Hampshire, (1942) 315 US 568 (Offensive, derisive or annoying utterances).
4. Saia v. New York, (1948) 334 US 558.
5. Terminiello v. City of Chicago, (1949) 337 US 1 (Reviews cases).
"[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 and order appears, the power of the State to prevent or punish is obvious."1
1. Cantwell v. Connecticut, (1940) 310 US 296 (308).
Most of the American cases, however, do not deal with the aspect of interception of a communication for reasons of security of the State. There are a few decisions dealing with previous restraint or with censorship generally.
But the rest of them relate to scandalous or obscene matters, to the distribution of pamphlets in public parks1-2-3-4, etc., or seditious5- and fraudulent matters6.
1. Near v. Mimesota, (1931) 283 US 697 (Previous restraint upon publication of malicious, scandalous and defamatory newspapers i.e., restraint in the form of court information held violative of the First Amendment).
2. Lowell v. Griffin, (1938) 303 US 444.
3. Niemotko v. Maryland, (1951) 340 US 268 (Judgment of Frankfurter J. contains a summary of the previous decisions).
4. Rockwell v. Morris, (1961) 211 NYS 2d 25; certiorari denied, (1961) 368 US 913.
5. U.S. v. Burleson, (1921) 255 US 407 (seditious matters).
6. Donaldson v. Read Magazine, (1948) 333 US 178 ( Fraudulent matter).