Report No. 38

87. Section 26 and comments received on the draft Report.-

With reference to section 26, it was noted1 that the amendment is acceptable to one of the Ministries of the Government of India.

1. S. No. 169, read with S. No. 174.

88. With reference to section 26 (as proposed), the comment of a State Government1 on our draft Report raised certain points. The first was

"(1) This Government doubts whether it is at all necessary or proper to attach to section 26(1), in express terms, the limitations imposed by the Constitution."

In our view, it is necessary to amend section 26, as proposed.

1. S. No. 170 (Comment of a State Government).

89. The comment of the State Government1, further, says-

"In so far as the proposed sub-section ignores the other freedoms of which also section 26(1) is restrictive, it is defective."

The point had been considered by us before formulating our proposals. Ordinarily, it is letters or newspapers which would be intercepted, under section 26, and their interception would not affect the freedom to carry on business, the freedom to hold property, etc. Hence, the other fundamental rights are not of practical importance in relation to section 26. In any case, so far as the other fundamental rights are concerned, the permissible restrictions under Article 19 are wider, than those under freedom of expression.

1. S. No. 170 (Comment of a State Government).

90. The State Government1, in its comment, has stated-

"One of the occasions on which the power under section 26(1) can be exercised, is occurrence of any "public emergency". But it seems to have been overlooked that the words "public emergency" used in section 26(1) are perfectly general and must also include an emergency proclaimed under Article 352 of the Constitution."

The comment is not acceptable to us. It is precisely because the expression "public emergency" is very wide-much wider than the language of Article 19, and that is why a difficulty may arise2-3.

1. S. No. 170 (A State Government).

2. See paras. 83 to 86, supra.

3. See also Appendix 5.

91. The State Government's comment1, further, says-

"(iv) Section 26(1) authorises interception or detention of a postal article in the course of its transmission by post. It is not clear to this Government why, if a notice to the sender was considered necessary in the case of action taken under section 23(3)(b), no notice should be considered necessary in the case of action taken under section 26(1)."

Now, we should point out, that there is a distinction between the situation envisaged by section 26, (on the one hand) and the situation envisaged by section 23 (in relation to obscene articles) (on the other hand).

Action under section 26 is taken in urgency and, (usually) for reasons of security of State. Notice to the sender would not be practicable. In our view, in considering the constitutionality of section 26-if it should ever be contested on the ground of want of notice-this distinction could be very properly relied upon.

1. S. No. 170.

92. Another point made by the State Government1 with reference to the recommendation for deletion of sub-section (2) of section 26 is this-"This Government is unable to support the recommendation. Whether a public emergency existed at a certain point of time or did not, cannot be justiciable by the Court nor can a Court decide whether a particular act was done in the interest of public safety or tranquillity, except perhaps when malice is alleged. It may further be pointed out, that whatever an Act of a legislature may say, the jurisdiction conferred on the High Courts by Article 226 of the Constitution and that conferred on the Supreme Court by Article 32, can never be taken away and, therefore, no uneasiness need be felt about sub-section (2) of section 26."

We do not agree with the comment. The vires of an action (when challenged) have to be examined with reference to the question whether, in point of fact, the action is constitutional.

1. S. No. 170 (A State Government).