Full Judgment Text
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PETITIONER:
STATE OF MADRAS
Vs.
RESPONDENT:
V.G. ROW.UNION OF INDIA & STATE IntervenersOF TRAVANCORE
DATE OF JUDGMENT:
31/03/1952
BENCH:
SASTRI, M. PATANJALI (CJ)
BENCH:
SASTRI, M. PATANJALI (CJ)
MAHAJAN, MEHR CHAND
MUKHERJEA, B.K.
DAS, SUDHI RANJAN
AIYAR, N. CHANDRASEKHARA
CITATION:
1952 AIR 196 1952 SCR 597
CITATOR INFO :
RF 1954 SC 92 (35)
RF 1954 SC 229 (28)
RF 1956 SC 479 (19)
R 1956 SC 559 (4,8,9)
E&R 1957 SC 896 (10)
E 1958 SC 578 (169)
F 1958 SC 731 (21)
F 1959 SC 300 (5)
R 1960 SC 468 (6)
R 1960 SC1080 (40)
R 1960 SC1124 (25,42,64)
R 1961 SC 448 (7)
R 1961 SC 705 (5,11,20)
R 1961 SC 884 (24)
R 1962 SC 123 (15)
R 1962 SC 263 (25)
R 1962 SC 305 (29)
A 1962 SC 316 (35,36)
R 1962 SC1371 (34,64,65,66)
R 1963 SC 996 (2)
R 1964 SC 416 (11)
RF 1967 SC 829 (6,7)
R 1968 SC 445 (14)
RF 1970 SC 898 (58)
R 1970 SC1157 (12)
R 1970 SC1453 (15)
R 1971 SC 530 (259)
R 1971 SC 966 (7)
R 1971 SC1667 (10,25,27)
RF 1973 SC 947 (8)
RF 1973 SC1461 (594,1547)
F 1975 SC 550 (8)
RF 1976 SC1207 (300)
RF 1977 SC1825 (29)
R 1978 SC 597 (132)
F 1978 SC 771 (15,22)
R 1978 SC1457 (62)
R 1979 SC 25 (31)
R 1980 SC 898 (70)
RF 1980 SC1992 (12)
R 1981 SC 873 (19,23)
RF 1981 SC1030 (16)
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MV 1982 SC1325 (32)
R 1984 SC 882 (3)
R 1984 SC1213 (8)
RF 1985 SC 551 (35)
R 1986 SC 515 (80)
R 1986 SC1205 (17)
ACT:
Indian Criminal Law Amendment Act (XIV of 1908) as amended
by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15
(2)(b), 16--Law empowering State to declare associations
illegal by notification-No provision for judicial inquiry or
for service of notification on association or office-bear-
ers--Validity of law--Unreasonable restriction on right to
form associations--Constitution of India, art. 19 (1) (c),
(4).
HEADNOTE:
Section 15 (2) (b) of the Indian Criminal Law Amendment
Act, 1908, as amended by the Indian Criminal Law Amendment
(Madras) Act, 1950, included within the definition of an
"unlawful association" an association "which has been de-
clared by the State by notification in the Official Gazette
to be unlawful on the ground (to be specified in the
notification) that such association (i) constitutes a
danger to the public peace, or (ii)has interfered or
interferes with the maintenance of public order or has such
interference for its object, or (iii) has interfered or
interferes with the administration of the law, or has such
interference for its object." Section 16 of the Act as
amended provided that a notification under s. 15 (2) (b)
shall (i) specify the ground on which it is issued and such
other particulars, if any, as may have a bearing on the
598
necessity therefor and (ii) fix a reasonable period for any
officebearer or member of the association or any other
person interested to make a representation to the State
Government in respect of the issue of the notification.
Under s. 16 A the Government was required after the expiry
of the time fixed in the notification for making representa-
tion to place the matter before an Advisory Board and to
cancel the notification if the Board finds that’ there was
no sufficient cause for the issue of such notification.
There was however no provision for adequate communication of
the notification to the association and its members or
office bearers. It was conceded that the test under s.
15(2)(b) as amended was, as it was under s. 16 as it stood
before the amendment, a subjective one and the factual
existence or otherwise of the grounds was not a justiciable
issue and the question was whether s. 15(2)(b) was unconsti-
tutional and void:
Held, (for reasons stated below) that s. 15 (2)(b)
imposed restrictions on the fundamental right to form asso-
ciations guaranteed by art. 19 (1) (c), which were not
reasonable within the meaning of art. 19 (4) and was there-
fore unconstitutional and void. The fundamental right to
form associations or unions guaranteed by art. 19 (1) (c) of
the Constitution has such a wide and varied scope for its
exercise, and its curtailment is fraught with such potential
reactions in the religious, political and economic fiel
this, that the vesting of the authority in the executive
Government to impose restrictions on such right, without
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allowing the grounds of such imposition, both in their
factual and legal aspects to be duly tested in a judicial
inquiry, is a strong element which should be taken into
account in judging the reasonableness of restrictions im-
posed on the fundamental right under art. 19(1)(c). The
absence of a provision for adequate communication of the
Government’s notification under s. 15(2)(b). by personal
service or service by affixture to the association and its
members and office-bearers was also a serious defect.
The formula of subjective satisfaction of the Government or
of its officers with an advisory Board to review the materi-
als on which the Government seeks to override a basic free-
dom guaranteed to the citizen, may be viewed as reasonable
only in very exceptional circumstances and within the nar-
rowest limits.
In considering the reasonableness of laws imposing
restrictions on fundamental right, both the substantive and
procedural aspects of the impugned law should be examined
from the point of view of reasonableness and the test of
reasonableness, wherever prescribed, should be applied to
each individual statute impugned and no abstract standard
or general pattern of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to
have been infringed, the underlying purpose of the restric-
tions imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time should all
599
enter into the judicial verdict. In evaluating such elu-
sive factors and forming their own conception of what is
reasonable, in all the circumstances of a given case, it is
inevitable that the social philosophy and the scale of
values of the judges participating in the decision should
play an important part, and the limit to their interference
with legislative judgment in such cases can only be dictated
by their sense of responsibility and self-restraint and the
sobering reflection that the Constitution is meant not only
for people of their way of thinking but for all, and that
the majority of the elected representatives of the people
have, in authorising the imposition of the restrictions,
considered them to be reasonable.
A.K. Gopalan v. The State ([1950] S.C.R. 88) and Dr.
Khare v. The State of Punjab ([1950] S.C.R. 519) distin-
guished.
JUDGMENT:
M. C, Setalvad, Attorney-General for India, (S. Govind
Swaminathan and R. Ganapathi Iyer, with him) for the appel-
lant (State of Madras).
C.R. Pattabhi Raman for the respondent.
M C. Setalvad, Attorney-General for India (G. N. Joshi.
with him) for the Union of India.
T.N. Subrahmanya lyer, (Advocate-General Travancore-
Cochin (M. R. Krishna Pillai, with him) for the State of
Travancore-Cochin.
1952. March 31. The Judgment of the Court was delivered
by
PATANJALI SASTRI C.J.--This is an appeal from an order of
the High Court of Judicature at Madras adjudging section 15
(2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act
No. XIV of 1908) as amended by the Indian Criminal Law
Amendment (Madras) Act, 1950, (hereinafter referred to as
the impugned Act) as unconstitutional and void, and quashing
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Government Order No. 1517, Public (General) Department,
dated 10th March, 1950, whereby the State Government de-
clared a Society called the People’s Education Society an
unlawful association.
The respondent, who was the general secretary of the
Society, which was registered under the Societies’ Registra-
tion Act, 1860, applied to the High Court on 78
600
10th April, 1950, under article 226 of the Constitution
complaining that the impugned Act and the Order dated 10th
March, 1950, purporting to be issued there-under infringed
the fundamental right conferred on him by article 19 (1)
(c) of the Constitution to form associations or unions and
seeking appropriate reliefs.The High Court by a full bench
of three Judges (Raja-mannar C.J., Satyanarayana Rao and
Viswanatha Sastri JJ.) allowed the application on 14th
September, 1950, and granted a certificate under article
132. The State of Madras has brought this appeal.
The Government Order referred to above runs as follows:--
"WHEREAS in the opinion of the State Government, the
Association known as the People’s Education Society, Madras,
has for its object interference with the administration of
the law and the maintenance of law and order, and consti-
tutes a danger to the public peace;
NOW, therefore, His Excellency the Governor of Madras,
in exercise of the powers conferred by Section 16 of the
Indian Criminal Law Amendment Act, 1908 (Central Act XIV of
1908) hereby declares the said association to be an unlawful
association within the meaning of the said Act.
No copy of this order was served on the respondent or
any other office-bearer of the society but it was notified
in the official Gazette as required by the impugned Act.
The declared objects of the Society as set out in the
affidavit of the respondent are:
(a) to encourage, promote, diffuse and popularise useful
knowledge in all sciences and more specially social science;
(b) to encourage, promote, diffuse and popularise polit-
ical education among people;
(c) to encourage, promote and popularise the study and
understanding of all social and political problems and bring
about social and political reforms; and
601
(d) to promote, encourage and popularise art, literature
and drama.
It was, however, stated in a counter-affidavit filed on
behalf of the appellant by the Deputy Secretary to Govern-
ment, Public Department, that, according to information
received by the Government, the Society was actively helping
the Communist Party in Madras which had been declared unlaw-
ful in August 1949 by utilising its funds through its Secre-
tary for carrying on propaganda on behalf of the Party, and
that the declared objects of the Society were intended to
camouflage its real activities.
As the Madras Amendment Act (No. XI of 1950) was passed
on the 12th August, 1950, during the pendency of the peti-
tion, which was taken up for hearing on the 21st August,
1950, the issues involved had to be determined in the light
of the original Act as amended. In order to appreciate the
issues it is necessary to refer to the relevant provisions.
Before amendment by the Madras Act, the material provisions
were as follows:-"15. In this Part-
(1) "association" means any combination or body of
persons whether the same be known by any distinctive name or
not; and
(2) "unlawful association" means an association(a) which
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encourages or aids persons to commit acts of violence or
intimidation or of which the members habitually commit such
acts, or
(b) which has been declared to be unlawful by the Pro-
vincial Government under the powers hereby conferred.
16. If the Provincial Government is of opinion that any
association interferes or has for its object interference
with the administration of the law or with the maintenance
of law and order, or that it constitutes a danger to the
public peace, the Provincial Government may by notification
in the official Gazette declare such association to be
unlawful."
The amending Act substituted for clause (b) in Section
15(2) the following clause :--
602
"(b) which has been declared by the State Government by
notification in the official Gazette to be unlawful on the
ground (to be specified in the notification) that such
association--
(i) constitutes a danger to the public peace, or
(ii)has interfered or interferes with the maintenance of
public order or has such interference for its object, or
(iii) has interfered or interferes with the administra-
tion of the law, or has such interference for its object".
For the old section 16, sections 16 and 16 A were substi-
tuted as follows:
"16. (1) A notification issued under clause (b) of sub-
section (2) of section 15 in respect of any association
shall-
(a) specify the ground on which it is issued, the rea-
sons for its issue, and such other particulars, if any, as
may have a bearing on the necessity therefor; and
(b) fix a reasonable period for any office-bearer or
member of the association or any other person interested to
make a representation to the State Government in respect of
the issue of the notification.
(2) Nothing in sub-section ( 1 ) shall require the State
Government to disclose any facts which it considers to be
against the public interest to disclose.
Under section 16 A the Government is required, after
the expiry of the time fixed in the notification for making
representations, to place before an Advisory Board consti-
tuted by it a copy of the notification and of the represen-
tations, if any, received before such expiry, and the Board
is to consider the materials placed before it, after calling
for such further information as it may deem necessary from
the State Government or from any office-bearer or member of
the association concerned or any other person, and submit
its report to the Government. If it is found by the Board
that there is no sufficient cause for the issue of the
notification in respect of the association
603
concerned, the Government is required to cancel the notifi-
cation.
There is no amendment of section 17 which prescribes
penalties by way of imprisonment or fine or both for member-
ship or management of an unlawful association and for taking
part in meetings of such association or making, receiving or
soliciting contributions for purposes thereof. Section 17
A, which confers power on the Government to notify and take
possession of places used for the purposes of an unlawful
association, was amended by the addition of subclauses 2(a)
and 2(b) providing for a remedy, where such power was exer-
cised, by way of application, within thirty days of the
notification in the official Gazette, to the Chief Judge of
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the Small Cause Court or the District Judge according as the
place notified is situated in the Presidency Town or out-
side, for "a declaration that the place has not been used
for the purposes of any unlawful association". If such
declaration is made, the Government is to cancel the notifi-
cation in respect of the place. Section 17B empowers the
officer taking possession of a notified place to forfeit
movable property found therein if, in his opinion, such
property" is, or may be used for the purposes of the unlaw-
ful association" after following the procedure indicated.
Section 17E similarly empowers the Government to forfeit
funds of an unlawful association "if it is satisfied after
such enquiry as it may think fit that such funds are being
used or intended to be used for the purposes of an unlawful
association". The procedure to be followed in such cases is
also prescribed. By section 17F jurisdiction of civil
courts, save as expressly provided, is barred in respect of
proceedings taken under sections 17 A to 17E.
By section 6 of the amending Act notifications already
issued and not cancelled before the amendment are to have
effect as if they had been issued under section 15 (2) (b)
as amended, and it is provided in such cases a supplementary
notification should also be issued as required in section
16 (1)( a) and (b) as amended and thereafter the procedure
provided by
604
the new section 16-A should be followed. It was under this
provision that the validity of the notification issued on
the 10th March, 1950, under old section 16 fell to be con-
sidered in the light of the provisions of the amended Act
when the petition came up for hearing in the High Court on
21st August, 1950.
It will be seen that while old section 16 expressly
conferred on the Provincial Government power to declare
associations unlawful if, in its opinion, there existed
certain specified grounds in relation to them, those grounds
are now incorporated in section 15(2)(b) as amended, and the
reference to the "opinion" of the Government is dropped.
This led to some discussion before us as to whether or not
the grounds referred to in section 15 (2) (b) as amended are
justiciable issues. if the factual existence of those
grounds could be made the subject of inquiry in a court of
law, the restrictions sought to be imposed on the right of
association would not be open to exception, but then the
Government would apparently have no use for section 15 (2)
(b). For, it was strenuously contended on its behalf by the
Attorney-General that the incorporation of these grounds in
a definition clause, which made a declaration by Govenment
the test of unlawfulness, rendered the insertion of the
words "in its opinion" unnecessary and, indeed, inappropri-
ate, and that the omission of those words could not lead to
any inference that the grounds on which the declaration was
to be based were intended to be any more justiciable than
under the old section 16; more especially as the "opinion"
or the "satisfaction" of the Government or of its officers
is still the determining factor in notifying a place under
section 17 A (1) and in forfeiting the movables found there-
in under section 17B (1) or the funds of an unlawful associ-
ation under section 17E (1). The provision for an inquiry
as to the existence or otherwise of such grounds before an
Advisory Board and for cancellation of the notification in
case the Board found there was no sufficient cause for
declaring the association as unlawful also pointed, it was
urged, to the same conclusion. The contention is not
605
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without force, and the position was not contested for the
respondent. It may, accordingly, be taken that the test
under section 15 (2) (b) is, as it was under the old
section 16, a subjective one and the factual existence or
otherwise of the grounds is not a justiciable issue.
It is on this basis, then, that the question has to be
determined as to whether section 15 (2)(b)as amended falls
within the limits of constitutionally permissible legisla-
tive abridgement of the fundamental right conferred on the
citizen by article 19 (1) (c). Those limits are defined in
clause (4) of the same article.
"(4) Nothing in sub-clause (c) of the said clause shall
affect the operation of any existing law in so far as it
imposes, or prevent the State from making any
imposing, in the interests of public order or morality,
reasonable restrictions on the exercise of the right con-
ferred by the said sub-clause."
It was not disputed that the restrictions in question
were imposed "in the interests of public order". But, are
they "reasonable" restrictions within the meaning of article
19 (4)?
Before proceeding to consider this question, we think it
right to point out, what is sometimes overlooked, that our
Constitution contains express provisions for judicial review
of legislation as to its conformity with the Constitution,
unlike as in America where the Supreme Court has assumed
extensive powers of reviewing legislative acts undercover of
the widely interpreted "due process" clause in the Fifth and
Fourteenth Amendments. If, then, the courts in this country
face up to such important and none too easy task, it is not
out of any desire to tilt at legislative authority in a
crusader’s spirit, but in discharge of a duty plainly laid
upon them by the Constitution. This is especially true as
regards the "fundamental rights ", as to which this Court
has been assigned the role of a sentinel on the qui vive.
While the Court naturally attaches great weight to the
legislative judgment, it cannot desert its own duty to
determine
606
finally the constitutionality of an impugned statute. We
have ventured on these obvious remarks because it appears to
have been suggested in some quarters that the courts in the
new set up are out to seek clashes with the legislatures in
the country.
The learned Judges of the High Court unanimously held
that the restrictions under section 15 (2) (b) were not
reasonable on the ground of-(1)the inadequacy of the publi-
cation of the notification, (2) the omission to fix a time-
limit for the Government sending the papers to the Advisory
Board or for the latter to make its report, no safeguards
being provided against the Government enforcing the penal-
ties in the meantime, and (3) the denial to the aggrieved
person of the right to appear either in person or by pleader
before the Advisory Board to make good his representation.
In addition to these grounds one of the learned Judges
(Satyanarayana Rao J.) held that the impugned Act offended
against article 14 of the Constitution in that there was no
reasonable basis for the differentiation in treatment be-
tween the two classes of unlawful associations mentioned in
section 15 (2) (a) and (b). The other learned Judges did
not, however, agree with this view. Viswanatha Sastri J.
further held that the provisions for forfeiture of property
contained in the impugned Act were void as they had no
reasonable relation to the maintenance of public order. The
other two Judges expressed no opinion on this point. While
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agreeing with the conclusion of the learned Judges that
section 15 (2) (b) is unconstitutional and void, we are of
opinion that the decision can be rested on a broader and
more fundamental ground.
This Court had occasion in Dr. Khare’s ease (1) to
define the scope of the judicial review under clause (5) of
article 19 where the phrase "imposing reasonable restric-
tions on the exercise of the right" also occurs, and four
out of the five Judges participating in the decision ex-
pressed the view (the other Judge leaving the question open)
that both the substantive and the procedural aspects of the
impugned restrictive
(1) [1950] S.C.R. 519,
607
law should be examined from the point of view of reasonable-
ness; that is to say, the Court should consider not only
factors such as the duration and the extent of the re-
strictions, but also the circumstances under which and the
manner in which their imposition has been authorised. It is
important in this context to bear in mind that the test of
reasonableness, whereever prescribed, should be applied to
each individual statute impugned, and no abstract standard.
or general pattern, of reasonableness can be laid down as
applicable to all cases. The nature of the right alleged to
have been infringed, the underlying purpose of the restric-
tions imposed, the extent and urgency of the evil sought to
be remedied thereby, the disproportion of the imposition,
the prevailing conditions at the time, should all enter into
the judicial verdict. In evaluating such elusive factors
and forming their own conception of what is reasonable, in
all the circumstances of a given case. it is inevitable that
the social philosophy and the scale of values of the judges
participating in the decision should play an important part,
and the limit to their interference with legislative judg-
ment in such cases can only be dictated by their sense of
responsibility and self-restraint and the sobering reflec-
tion that the Constitution is meant not only for people of
their way of thinking but for all, and that the majority of
the elected representatives of the people have, in authoris-
ing the imposition of’ the restrictions, considered them to
be reasonable.
Giving due weight to all the considerations indicated
above, we have come to the conclusion that section 15 (2)
(b) cannot be upheld as falling within the limits of autho-
rised restrictions on the right conferred by article 19 (1)
(c). The right to form associations or unions has such
wide and varied scope for its exercise, and its curtail-
ment is fraught with such potential reactions in the reli-
gious political and economic fields, that the vesting of
authority in the executive government to impose restrictions
on such right, without allowing the grounds of such imposi-
tion, both in their factual and legal aspects, to be
608
duly tested in a judicial inquiry, is a strong element
which, in our opinion, must be taken into account in judging
the reasonableness of the restrictions imposed by section 15
(2) (b) on the exercise of the fundamental right under
article 19 (1) (c); for, no summary and what is bound to be
a largely one-sided review by an Advisory Board, even where
its verdict is binding on the executive government, can be a
substitute for a judicial enquiry. The formula of subjective
satisfaction of the Government or of its officers, with an
Advisory Board thrown in to review the materials on which
the Government seeks to override a basic freedom guaranteed
to the citizen, may be viewed as reasonable only in very
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exceptional circumstances and within the narrowest limits,
and cannot receive judicial approval as a general pattern of
reasonable restrictions on fundamental rights. In the case
of preventive detention, no doubt, this Court upheld in
Gopalan’s case(1) deprivation of personal liberty by such
means, but that was because the Constitution itself sanc-
tions laws providing for preventive detention, as to which
no question of reasonableness could arise in view of the
language of article 21. As pointed out by Kania C.J. at
page 121, quoting Lord Finlay in Rex v. Halliday(2), "the
court was the least appropriate tribunal to investigate into
circumstances of suspicion on which such anticipatory action
must be largely based".
The Attorney-General placed strong reliance on the
decision in Dr. Khare’s ease(3) where the subjective satis-
faction of the Government regarding the necessity for the
externment of a person, coupled with a reference of the
matter to an Advisory Board whose opinion, however, had no
binding force, was considered by a majority to be "reasona-
ble" procedure for restricting the right to move freely
conferred by article 19 (1)(b). The Attorney-General claimed
that the reasoning of that decision applied a fortiori to
the present ease, as the impugned Act provided that the
Advisory Board’s report was binding on the Government. We
cannot agree. We consider that that ease
(1) [1950] S.C.R. 88. (2) [1917] A.C. 260, 269. (3)
[1950] S.C.R. 519,
609
is distinguishable in several essential particulars. For one
thing, externment of individuals, like preventive detention,
is largely precautionary and based on suspicion. In fact,
section 4 (1) of the East Punjab Public Safety Act, which
was the subject of consideration in Dr. Khare’s case(1),
authorised both preventive detention and externment for the
same purpose and on the same ground namely, with a view to
preventing him from acting in any manner prejudicial to the
public safety or the maintenance of public order it is
necessary, etc." Besides, both involve an element of emer-
gency requiring prompt steps to be taken to prevent appre-
hended danger to public tranquillity, and authority has to
be vested in the Government and its officers to take appro-
priate action on their own responsibility. These features
are however, absent in the grounds on which the Government
is authorised,under section 15 (2) (b), to declare associa-
tions unlawful. These grounds, taken by themselves, are
factualand not anticipatory or based on suspicion. An asso-
ciation is allowed to be declared unlawful because it
"constitutes" a danger or "has interfered or interferes"
with the maintenance of public order or "has such interfer-
ence for its object" etc. The factual existence of these
grounds is amenable to objective determination by the court,
quite as much as the grounds mentioned in clause (a) of
sub-section (2) of section 15, as to which the Attorney-
General conceded that it would be incumbent on the Govern-
ment to establish, as a fact, that the association, which it
alleged to be unlawful, "encouraged" or "aided" persons to
commit acts of violence, etc. We are unable to discover
any reasonableness in the claim of the Government in seek-
ing, by its mere declaration, to shut out judicial enquiry
into the underlying facts under clause (b). Secondly, the
East Punjab Public Safety Act was a temporary enactment
which was to be in force only for a year, and any order made
there-under was to expire at the termination of the Act.
What may be regarded as a reasonable restriction
(1) [1950] S.C.R. 519.
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610
imposed under such a statute will not necessarily be consid-
ered reasonable under the impugned Act, as the latter is a
permanent measure, and any declaration made thereunder would
continue in operation for an indefinite period until the
Government should think fit to cancel it. Thirdly, while, no
doubt, the Advisory Board procedure under the impugned Act
provides a better safeguard than the one under the East
Punjab Public Safety Act, under which the report of such
body is not binding on the Government, the impugned Act
suffers from a far more serious defect in the absence of any
provision for adequate communication of the Government’s
notification under section 15 (2) (b) to the association and
its members or office-bearers. The Government has to fix a
reasonable period in the notification for the aggrieved
person to make a representation to the Government. But, as
stated already, no personal service on any office-bearer or
member of the association concerned or service by affixture
at the office, if any, of such association is prescribed.
Nor is any other mode of proclamation of the notification at
the place where such association carries on its activities
provided for Publication in the official Gazette, whose
publicity value is by no means great, may not reach the
members of the association declared unlawful, and if the
time fixed expired before they knew of such declaration
their right of making a representation, which is the only
opportunity of presenting their case, would be 1oat. Yet,
the consequences to the members which the notification
involves are most serious, for, their very membership there-
after is made an offence under section 17.
There was some discussion at the bar as to whether want
of knowledge of the notification would be a valid defence in
a prosecution under that section. But it is not necessary
to enter upon that question, as the very risk of prosecution
involved in declaring an association unlawful with penal
consequences, without providing for adequate communication
of such declaration to the association and its members or
office bearers, may well be considered sufficient to render
the imposition of
611
restrictions by such means unreasonable. In this respect
an externment order stands on a different footing, as provi-
sion is made for personal or other adequate mode of service
on the individual concerned, who is thus assured of an
opportunity of putting forward his case. For all these
reasons the decision in Dr. Khare’s case(1) is distinguisha-
ble and cannot rule the present case as claimed by the
learned AttorneyGeneral. Indeed, as we have observed earli-
er, a decision dealing with the validity of restrictions
imposed on one of the rights conferred by article 19 (1)
cannot have much value as a precedent for adjudging the
validity of the restrictions imposed on another right, even
when the constitutional criterion is the same, namely,
reasonableness, as the conclusion must depend on the cumula-
tive effect of the varying facts and circumstances of each
case.
Having given the case our best and most anxious consid-
eration, we have arrived at the conclusion, in agreement
with the learned Judges of the High Court, that, having
regard to the peculiar features to which reference has been
made, section 15 (2)(b) of the Criminal Law Amendment Act,
1908, as amended by the Criminal Law Amendment (Madras) Act,
1950, falls outside the scope of authorised restrictions
under clause (4) of article 19 and is, therefore, unconsti-
tutional and void.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
The appeal fails and is accordingly dismissed with
costs.
Appeal dismissed.
Agent for the appellant: P.A. Mehta.
Agent for the respondent: S. Subrahmanyan.
Agent for the Union of India and the State of Travan-
core-Cochin: P.A. Mehta.
(1) [1950] S.C.R. 519,
612