Full Judgment Text
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PETITIONER:
THE SUPERINTENDENT, CENTRAL PRISON,FATEHGARH
Vs.
RESPONDENT:
RAM MANOHAR LOHIA
DATE OF JUDGMENT:
21/01/1960
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ)
GAJENDRAGADKAR, P.B.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1960 AIR 633 1960 SCR (2) 821
CITATOR INFO :
APL 1962 SC1106 (8)
APL 1962 SC1166 (15)
R 1963 SC 812 (10)
MV 1966 SC 740 (49,66)
RF 1967 SC1110 (16)
RF 1971 SC2486 (14)
RF 1973 SC1091 (6)
R 1974 SC 911 (2,4)
R 1987 SC 998 (4)
RF 1989 SC 371 (9)
ACT:
Fundamental Right-Infringement of-Enactment imposing
restrictions on freedom of speech-Constitutional validity-
Test-"In the interest of Public order". Meaning of-Doctrine
of severability-Applicability-Constitution of India, Arts.
19(1) (a), 19(2)U.P. Special Powers Act, 1932 (U.P. XIV Of
1932) s. 3.
HEADNOTE:
Section 3 of the U.P. Special Powers Act, 1932 (XIV Of
1932), provided as follows:-
"Whoever, by word, either spoken or written, or by signs or
by visible representations, or otherwise, instigates,
expressly or by implication, any person or class of persons
not to pay or to defer payment of any liability, and whoever
does any act, with intent or knowing it to be likely that
any words, signs or visible representations containing such
instigation shall thereby be communicated directly or
indirectly to any person or class of persons, in any manner
whatsoever, shall be punishable with imprisonment which may
extend to six months, or with fine, extending to Rs. 250, or
with both."
The appellant, who was prosecuted under the section for
delivering speeches instigating cultivators not to pay
enhanced irrigation rates to the Government, applied to the
High Court for a writ of habeas corpus on the ground,
amongst others, that the said section was inconsistent with
Art. 19(1) (a) of the Constitution and as such void. The
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High Court decided in favour of the appellant and he was
released. The State appealed to this Court and the question
for determination was whether the impugned section embodied
reasonable restrictions in the interests of public order and
was thus protected by Art. 19(2) of the Constitution.
Held, that even though in a comprehensive sense all the
grounds specified in Art. 19(2) of the Constitution on which
any reasonable restrictions on the right to freedom of
speech must be based can be brought under the general head
"public order", that expression, inserted into the Article
by the Constitution (First Amendment) Act, 1951, must be
demarcated from the other grounds and ordinarily read in an
exclusive sense to mean public peace, safety and tranquility
in contradistinction to national upheavals, such as
revolution, civil strife and war, affecting the security of
the State.
Romesh Thappar v. The State of Madras (1950) S.C.R. 594,
Brij Bhushan v.The State of Delhi. (1950) S.C.R. 605, The
State of Bihar v. Shailabala Devi. (1952) S.C.R. 654 and
Cantewell v. Connecticut. (1940) 310 U.S. 296, discussed.
822
It is well settled by decisions of this Court that in a
restriction in order to be reasonable must have a reasonable
relation to the object the Legislation has in view and must
not go beyond it. Restrictions, therefore, meant to be in
the interest of public order which have no proximate
relationship or nexus with it but can be only remotely or
hypothetically connected with it, cannot be reasonable
within the meaning of Art. 19(2) of the Constitution.
Rex v. Basudeva, A.I.R.(1950) F.C. 67, applied.
Ramji Lal Modi v. The State of U.P. (1957) S.C.R. 86o and
Virendra v. The State of Punjab, (1958) S.C.R. 308,
explained.
So judged, it cannot be said that the acts prohibited under
the wide and sweeping provisions of s. 3 of the Act can have
any proximate or even foreseeable connection with public
order sought to be protected by it, and, consequently, that
section, being violative of the right to freedom of speech
guaranteed by Art. 19(1) (a) of the Constitution, must be
struck down as unconstitutional.
It would be incorrect to argue that since instigation by a
single individual not to pay taxes might ultimately lead to
a revolution resulting in distruction of public order, that
instigation must have a proximate connection with public
order. No fundamental rights can be restricted on such
hypothetical and imaginary consideration.
Nor is it possible to accept the argument that in a demo-
cratic set up there can be no scope for agitational approach
or that any instigation to break a bad law must by itself
constitute a breach of public order, for to do so without
obvious limitations would be to destroy the right to freedom
of speech on which democracy is founded.
It is not possible to apply the doctrine of severability
relating to fundamental rights as enunciated by this Court
to the provisions of the impugned section, since it is not
possible to precisely determine whether the various
categories of instigation mentioned therein fall within or
without the constitutionally permissible limits of
legislation and separate the valid parts from the invalid.
R.M.D. Chamarbaugwalla v. The Union of India (1957) S.C.R.
93o, explained and distinguished.
Romesh Thappar v. The State of Madras (1950) S.C.R. 594 and
Chintaman Rao v. The State o Madhya Pradesh. (1950) S.C.R.
759, referred to.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 76 of
1956.
Appeal from the judgment and order dated August 27, 1954, of
the Allahabad High Court in Criminal Misc. Writ No. 20 of
1954.
823
K. L. Misra, Advocate-General for the State of Uttar
Pradesh. G. 0. Mathur and C. P. Lal, for the appellants.
N. S. Bindra, for the respondent.1960. January 21. The
Judgment of the Court was delivered by
SUBBA RAO J.-This appeal raises the question of
interpretation of the words " in the interest of public
order " in Art. 19(2) of the Constitution.
The facts are not in dispute and they lie in a small
compass. The respondent, Dr. Ram Manohar Lohia, is the
General Secretary of the Socialist Party of India. The U.
P. Government enhanced the irrigation rates for water
supplied from canals to cultivators. The party to which the
respondent belongs resolved to start an agitation against
the said enhancement for the alleged reason that it placed
an unbearable burden upon the cultivators. Pursuant to the
policy of his party, the respondent visited Farrukhabad and
addressed two public meetings wherein he made speeches
instigating the audience not to pay enhanced irrigation
rates to the Government. On July 4, 1954, at 10 p.m. he was
arrested and produced before the City Magistrate,
Farrukhabad, who remanded him for two days. After
investigation, the Station officer, Kaimganj, filed a
charge-sheet against the respondent before Sri P. R. Gupta,
a Judicial Officer at Farrukliabad. On July 6, 1954, the
Magistrate went to the jail to try the case against the
respondent, but the latter took objection to the trial being
held in the jail premises. When the Magistrate insisted
upon proceeding with the trial, the respondent obtained an
adjournment on the ground that he would like to move the
High Court for transfer of the case from the file of the
said Magistrate. Thereafter the respondent filed a petition
before the High Court for a writ of habeas corpus on the
ground, among others, that s. 3 of the U. P. Special Powers
Act (Act No. XIV of 1932), 1932, (hereinafter called the
Act) was void under the Constitution.
105
824
In the first instance the petition came up for disposal
before a division bench of the High Court at
Allahabad consisting of Desai and Chaturvedi, Elaborate
arguments were addressed before them covering a wide field.
The learned Judges delivered differing judgments expressing
their views on the main points raised before them. They
referred the matter to the Chief Justice for obtaining the
opinion of a third Judge on the following two points: " (i)
Was the’ provision of s. 3 of the U. P. Special Powers Act
of 1932 making it penal for a person by spoken words to
instigate class of persons not to pay dues recoverable as
arrears of land revenue, inconsistent with Art. 19(1)(a) of
the Constitution on the 26th of January, 1950 ? " and " (ii)
if so, was it in the interests of public order ? ". The
petition was placed before Agarwala, J., as a third Judge,
who agreeing with Desai, J., gave the following answers to
the questions referred to him :
Question No. (i). "The provision of section’s of the U. P.
Special Powers Act, 1932, making it penal for a person by
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spoken words to instigate a class of persons not to pay dues
recoverable as arrears of land revenue, was inconsistent
with Article 19(1)(a) of the Constitution on the 26th
January, 1950."
Question No. (ii). " The restrictions imposed by section 3
of the U. P. Special Powers Act, 1932, were not in the
interests of public order."
In the usual course the matter was placed before the two
learned Judges who first heard the case and they, on the
basis of the majority view, allowed the petition and
directed the respondent to be released.. The State has
preferred the present appeal against the said order of the
High Court.
The learned Advocate General, appearing for the appellant.
stated before us that be did not propose to canvass the
correctness of the majority view on one of the important
points raised in the case, namely, that the effect of the
passing of the Act did not ipso facto deprive a citizen of
his freedom of speech guaranteed. under Art. 19(1) (a) of
the Constitution and its validity should be tested by the
provisions
825
of Art. 19(2) thereof. He did not. concede the validity of
the finding in this regard but assumed its correctness for
the purpose of this case. Nothing further, therefore, need
be mentioned on this point.
The gist of the argument of the learned Advocate General may
be stated thus: The legislature can make laws placing
reasonable restrictions on the rights of a citizen to
freedom of speech and expression in the interests of public
order among other grounds. The words "in the interests of
public order" are wider in connotation than the words " for
the maintenance of public order ". Laws are rules made by
the legislature for the governance of the people in the
State which they are bound to obey, and they are enacted to
keep public peace and order. The avowed object of s. 3 of
the Act was to prevent persons from instigating others to
break the laws imposing a liability upon a person or class
of persons to pay taxes and other dues to the State, any
authority or to any land-owner. The impugned section was
enacted in the interests of public order and therefore the
section was protected by Art. 19(2) of the Constitution.
The learned Advocate General pointed out that the object of
the State in preferring this appeal was to obtain the
decision of this Court on the question of constitutional
validity of s. 3 of the Act and not to pursue the matter
against Dr. Lohia.
The respondent was not present at the time the appeal was
heard and was not represented by an advocate. As the
question raised was an important one, we requested Mr. N. S.
Bindra to assist the Court, and he kindly agreed to do so.
He supported the majority view of the High Court. We record
our thanks for his assistance.
At the outset it would not be out of place to notice briefly
the history of the Act. The Act was originally passed in
the year 1932 during the British rule. In an attempt to
offset the campaign of non-payment of taxes and other forms
of agitation resorted to by the Congress Party, originally
it was put on the statute book for one year; but in 1940
when the State was under the " Governor’s rule ", the Act
was made
826
permanent. Under the Act, ss. 1 and 2 came into effect
immediately on the passing of the Act and S. 1(2) enabled
the Government by notification to extend all or any of the
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remaining sections to any district or to any part of a
district in the United Provinces. After the Constitution,
the Act was not repealed but was allowed to continue, with
necessary adaptations, in the statue book. Between April
and June, 1954, the State Government extended the provisions
of the Act to 33 districts including Farrukhabad district.
Now lot us look at the provisions of the Act to ascertain
its scope and field of operation. The preamble discloses
that it was enacted in 1932 to make provision against and to
take powers to deal with instigation to the illegal refusal
of the payment of certain liablities and s. 2 defines "
liablity " to mean " land revenue or any sum recoverable as
arrears of land revenue or any tax, rate, cess or other dues
or amount payable to Government or to any local authority,
or rent of agricultural land or anything recoverable as
arrears of or along with such rent ". Section 3 prescribes
the punishment for instigation to the non-payment of a
liability. As the argument centres round this section, it
will be convenient to read the same:
Section 3: Whoever, by word, either spoken or written, or by
signs or by visible representations, or otherwise,
instigates, expressly or by implication, any person or class
of persons not to pay or to defer payment of any liability,
and whoever does any act, with intent or knowing it to be
likely that any words, signs or visible representations con.
taining such instigation shall thereby be communicated
directly or indirectly to any person or class of persons, in
any manner whatsoever, shall be punishable with imprisonment
which may extend to six months, or with fine, extending to
Rs. 250, or with both."
Section 4 says that any person to whom an arrear of
liability is due may apply to the Collector to realize it
and the Collector is authorized to realize the same
827
as an arrear of land revenue. The impugned section may be
dissected into the following components (i) whoever by word,
either spoken or written, or by signs or by visible
representations or otherwise, (ii) instigates, (iii)
expressly or by implication,(iv) any person or class of
persons, (v) not to pay any liability, (vi) to defer payment
of any liability, (vii) does an act with intent that any
words etc. shall be communicated to any person or class of
persons, (viii) with the knowledge that it is likely that
such words etc. shall be communicated to any person or class
of persons, (ix) such communication may be made directly, or
indirectly and (x) shall be punished with imprisonment or
with fine or with both. Under this section a wide net has
been cast to catch in a variety of acts of instigation
ranging from friendly advice to a systematic propaganda not
to pay or to defer payment of liability to Government, any
authority or to any person to whom rent is payable in
respect of agricultural land. The meaning of this section,
read along with ss. 2 and 4, can be ascertained more clearly
by illustration than by definition. (1) A instigates B not
to pay any liability to Government, any authority or to any
land owner; (2) A instigates B to defer payment of any
liability - to Government, any authority or landlord; (3) A
instigates a class of persons to do the same; (4) A may do
any one of the foregoing things not only by word, but also
by signs, visible representations or otherwise; (5) A may do
any one of the things bona fide either to get the claim
decided in a Court of law or to gain time to get the law
changed; (6) A may instigate B not to pay any amount due to
Government or to any authority, but the said amount can be
recovered by the authority concerned as arrears of land
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revenue; (7) A may tell C with intention or with knowledge
that the said instigation may be communicated to B so that
he may not pay; (8) any statement by A to C may imply such
instigation. In its wide amplitude the section takes in the
innocent and the guilty persons, bona fide and mala fide
advice, individuals and class, abstention from payment and
deferment of payment,
828
expressed or implied instigation, indirect or direct
instigation, liability due not only to Government but to any
authority or landholder. In short, no person, whether legal
adviser or a friend or a well-wisher of a person instigated
can escape the tentacles of this section, though in fact the
rent due has been collected through coercive process or
otherwise.
We shall now proceed to consider the constitutional validity
of this section. The material portions of the relevant
provisions of the Constitution may now be read:
Article 19: " (1) All citizens shall have the right-
(a) to freedom of speech and expression;
(2) Nothing in sub-clause (a) of clause (1) shall affect
the operation of any existing law, or prevent the State from
making any law, in so far as such law imposes reasonable
restrictions on the exercise of the right conferred by the
said sub-clause in the interests of the security of the
State, friendly relations with foreign States, public order,
decenc or morality or in relation to contempt of
court,defamation or incitement to an offence."
Clause (2) of Art. 19 was amended by the Constitution (First
Amendment) Act, 1951. By this amendment several new grounds
of restrictions upon the freedom of speech have been
introduced, such as friendly relations with foreign States,
public order and incitement to an offence. It is self
evident and common place that freedom of speech is one of
the bulwarks of a democratic form of Government. It is
equally obvious that freedom of speech can only thrive in an
orderly society. Clause (2) of Art. 19, therefore, does not
affect the operation of any existing law or prevent the
State from making any law in so far as such law imposes
reasonable restrictions on the exercise of the right of
freedom of speech in the interest of public order, among
others. To sustain the existing law or a new law made by
the State under cl. (2) of Art. 19, so far as it is relevant
to the present enquiry, two conditions should be
829
complied with, viz., (i) the restrictions imposed must be
reasonable; and (ii) they should be in the interests of
public order. Before we consider the scope of tile word,-,
of limitation, " reasonable restrictions" and " in the
interests of ", it is necessary to ascertain the true
meaning of the expression public order " in the said clause.
The expression public order" has a very wide connotation.
Order is the basic need in any organised society. It
implies the orderly state of society or community in which
citizens can peacefully pursue their normal activities of
life. In the words of an eminent Judge of the Supreme Court
of America " the essential rights are subject to the,
elementary need for order without which the guarantee of
those rights would be a mockery ". The expression has not
been define(] in the Constitution, but it occurs in List II
of its Seventh Schedule and is also inserted by the
Constitution (First Amendment) Act, 1951 in el. (2) of Art.
19. The sense in which it is used in Art. 19 can only be
appreciates by ascertaining how the Article was construed
before it was inserted therein and what was the defect to
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remedy which the Parliament inserted the same by the said
amendment. The impact of el. (2) of Art. 19 on Art.
19(1)(a) before the said amendment was subject to judicial
scrutiny by this Court in Romesh Thappar v. The State of
Madras(l). There the Government of Madras, in exercise of
their powers under s. 9(1-A) of the Madras Maintenance of
Public Order Act, 1949, purported to issue an order whereby
they imposed a ban upon the entry and circulation of the
journal called " Cross -.Roads " in that State. The
petitioner therein contended that the said order contravened
his fundamental right to freedom of speech and expression.
At the time when that order was issued the (expression "
public order " was not in Art. 19(2) of the Constitution;
but the words " the security of the State " were there. In
considering whether the impugned Act was made in the
interests of security of the State, Patanjali Sastri, J., as
he then was, after citing the observation of Stephen in his
Criminal Law of England, states:
(1) [1950) S.C.R. 594, 600, 601, 602,
830
"Though all these offences thus involve disturbances of
public tranquillity and are in theory offences against
public order, the difference between them being only a
difference of degree, yet for the purpose of gurading the
punishment to be inflicted in respect of them they may be
classified into different minor categories as has been done
by the Indian Penal Code. Similarly, the Constitution, in
formulating the varying criteria for permissible legislation
imposing restrictions on the fundamental rights enumerated
in article 19 (1), has placed in a distinct category those
offences against public order which aim at undermining the
security of the State or overthrowing it, and made their
prevention the sole justification for legislative
abridgement of freedom of speech and expression, that is to
say, nothing less than endangering the foundations of the
State or threatening its overthrow could. justify
curtailment of the rights to freedom of speech and expres-
sion.........."
The learned Judge continued to state:
" The Constitution thus requires a line to be drawn in the
field of public order or tranquillity marking off, may be,
roughly, the boundary between those serious and aggravated
forms of public disorder which are calculated to endanger
the security of the State and the relatively minor breaches
of the peace of a purely local significance, treating for
this purpose differences in degree as if they were
differences in kind. "
The learned Judge proceeded further to state:
" We, are therefore of opinion that unless a law restricting
freedom of speech and expression is directed solely against
the undermining of the security of the State or the
overthrow of it, such law cannot fall within the reservation
under clause (2) of article 19, although the restrictions
which it seeks to impose may have been conceived generally
in the interests of public order. "
This decision establishes two propositions, viz., (i)
maintenance of public order is equated with maintenance of
public tranquillity; and (ii) the offences against
831
public order are divided into two categories, viz., (a)
major offences affecting the security of the State, and (b)
minor offences involving breach of purely local
significance. This Court in Brij Bhushan v. The state of
Delhi (1) followed the earlier decision in the context of s.
7 (1) (c) of the East Punjab Public Safety Act, 1949. Fazl
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Ali, J., in his dissenting judgment gave the expression "
public order " a wider meaning than that given by the
majority view. The learned Judge observed at p. 612 thus:
" When we approach the matter in this way, we find that
while’ public disorder’ is wide enough to cover a small riot
or an affray and other cases where peace is disturbed by, or
affects, a small group or persons, ’public unsafety (or
insecurity of the State), will usually be connected with
serious internal disorders and such disturbances of public
tranquillity as jeopardize the security of the State. "
This observation also indicates that " public order " is
equated with public peace and safety. Presumably in an
attempt to get over the effect of these two decisions, the
expression " public order " was inserted in Art. 19 (2) of
the Constitution by the Constitution (First Amendment) Act,
1951, with a view to bring in offences involving breach of
purely local significance within the scope of permissible
restrictions under cl. (2) of Art. 19. After the said
amendment, this Court explained the scope of Romesh
Thappar’s Case (1) in The state of Bihar v. shailabala Devi
(). That case was concerned with the constitutional
validity of s. 4 (1) (a) of the Indian Press (Emergency
Powers) Act, 1931. It deals with the words or signs or
visible representations which incite to or encourage, or
tend to incite to or encourage the commission of any offence
of murder or any cognizable offence involving violence.
Mahajan, J., as he then was, observed at p. 660:
" The deduction that a person would be free to incite to
murder or other cognizable offence through the press with
impunity drawn from our decision in
(1) [1950] S.C R. 605. (2) [1952] S.C.R. 654.
106
832
Romesh Thappar’s case could easily have been avoided as it
was avoided by Shearer J., who in very emphatic terms said
as follows:
"I have read and re-read the judgments of the Supreme
Court, and I can find nothing in them myself which bear
directly on the point at issue,and leads me to think that,
in their opinion, a restriction of this kind is no longer
permissible. "
The validity of that section came up for consideration after
the Constitution (First Amendment) Act, 1951, which was
expressly made retrospective, and therefore the said section
clearly fell within the ambit of the words " in the interest
of public order ". That apart the observations of Mahajan,
J., as he then was, indicate that even without the amendment
that section would have been good inasmuch as it aimed to
prevent incitement to murder.
The words " public order " were also understood in America
and England as offences against public safety or public
peace. The Supreme Court of America observed in Cantewell
v. Connecticut (1) thus:
"The offence known as breach of the peace embraces a great
variety of conduct destroying or menacing public order and
tranquillity. It includes not only violent acts and words
likely to produce violence in others. No one would have the
hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot When clear and present -danger
of riot, disorder, interference with traffic upon the public
streets, or other immediate threat to public safety, peace,
or order appears, the power of the State to prevent or
punish is obvious. "
The American decisions sanctioned a variety of restrictions
on the freedom of speech in the interests of public order.
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They cover the entire gamut of restrictions that can be
imposed under different heads in Art. 19(2) of our
Constitution. The following summary of some of the cases of
the Supreme Court of America given in a well-known book on
Constitutional Law illustrates the range of categories of
cases covering
(1) (1940) 310 U S. 296, 308,
833
that expression. " In the interests of public order, the
State may prohibit and punish the causing of ’loud and
raucousnoise’ in streets and public places by means of sound
amplifying instruments, regulate the hours and place of
public discussion, and the use of the public streets for the
purpose of exercising freedom of speech; provide for the
expulsion of hecklers from meetings and assemblies, punish
utterances tending to incite an immediate breach of the
peace or riot as distinguished from utterances causing mere
’public inconvenience, annoyance or unrest’. " In England
also Acts like Public Order Act, 1936, Theatres Act, 1843
were passed: the former making it an offence to use
threatening, abusive or insulting words or behaviour in any
public place or at any public meeting with intent to provoke
a breach of the peace or whereby a breach of the peace is
likely to be caused, and the latter was enacted to authorise
the Lord Chamberlain to prohibit any stage play whenever he
thought its public performance would militate against good
manners, decorum and the preservation of the public peace.
The reason underlying all the decisions is that if the
freedom of speech was not restricted in the manner the
relevant Acts did, public safety and tranquillity in the
State would be affected.
But in India under Art. 19(2) this wide concept of" public
order " is split up under different heads. It enables the
imposition of reasonable restrictions on the exercise of the
right to freedom of speech and expression in the interests
of the security of the State, friendly relations with
foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to
an offence. All the grounds mentioned therein can be
brought under the general head " public order " in its most
comprehensive sense. But the juxtaposition of the different
grounds indicates that, though sometimes they tend to
overlap, they must be ordinarily intended to exclude each
other. " Public order " is therefore something which is
demarcated from the others. In that limited sense,
particularly in view of, the history of the amendment, it
can be pustulated that "public order "
834
is synonymous with public peace, safety and tranquillity.
The next question is what do the words " interest of public
order " mean ? The learned Advocate General contends that
the phrase "in the interest of public order" is of a wider
connotation than the words "for the maintenance of public
order" and,therefore, any breach of law which may have the
tendency, however remote, to disturb the public order would
be covered by the said phrase. Support is Sought to be
drawn for this wide proposition from the judgment of this
Court in Ramji Lal Modi v. The State of U.P. (1). It is not
necessary to state the facts of that case, as reliance is
placed only on the observations of Das, C.J., at p. 865,
which read:
"It will be noticed that the language employed in the
amended clause is "in the interests of" and not "for the
maintenance of". As one of us pointed out in Debi Saron v.
The State of Bihar (2), the expression "in the interests of"
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makes the ambit of protection very wide. A law may not have
been designed to directly maintain public order and yet it
may have been enacted in the interests of public order."
The learned Chief Justice again in Virendra v. The State of
Punjab (3) observed, at p. 317, much to the same effect:
"As has been explained by this Court in Ramji Lal Modi v.
The State of U.P. (1), the words "in the interests of" are
words of great amplitude and are much wider than the words
"for the maintenance of." The expression "in the interests
of" makes the ambit of the protection very wide, for a law
may not have been designed to directly maintain the public
order or to directly protect the general public against any
particular evil and yet it may have been enacted "in the
interests of" the public order or the general public as the
case may be."
We do not understand the observations of the Chief Justice
to mean that any remote or fanciful connection between the
impugned Act and the public order
(1) [1957] S.C.R. 860. (2) A.I R. (1954) Pat 254
(3) [1958] S.C.R. 308.
835
would be sufficient to sustain its validity. The learned
Chief Justice was only making a distinction between an Act
which expressly and directly purported to maintain public
order and one which did not expressly state the said purpose
but left it to be implied therefrom ; and between an Act
that directly maintained public order and that indirectly
brought about the same result. The distinction does not
ignore the necessity for intimate connection between the Act
and the public order sought to be maintained by the Act.
Apart from the said phrase, another limitation in the
clause, namely, that the restrictions shall be reasonable,
brings about the same result. The word "reasonable" has
been defined by this Court in more than one decision. It
has been held that in order to be reasonable, "restrictions
must have reasonable relation to the object which the
legislation seeks to achieve and must not go in excess of
that object". The restriction made "in the interests of
public order" must also have reasonable relation to the
object to be achieved, i.e., the public order. If the
restriction has no proximate relationship to the achievement
of public order, it cannot be said that the restriction is a
reasonable restriction within the meaning of the said
clause. A full bench decision of the Federal Court in Rex
v. Basudeva (1) contains some observations which give
considerable assistance to construe the words. In that
case, the appellant was detained in pursuance of the order
made by the Government of U.P. under the U.P. Prevention of
Black-Marketing (Temporary Powers) Act, 1947. The question
was whether the preventive detention provided for in s. 3(1)
(i) of the said Act was preventive detention for reasons
connected with the maintenance of public order. The
argument in that case ran on the same lines as in the
present case. The learned Advocate General there urged that
habitual black-marketing in essential commodities was bound
sooner or later to cause a dislocation of the machinery of
controlled distribution which, in turn, might lead to
breaches of the peace and that, therefore, detention with a
view to prevent such black marketing was covered by the
(1) A.I.R. (1950) F.C. 67
836
entry. Answering that argument, Patanjali Sastri, J.,as he
then was, pointed out, at p. 69:
"Activities such as these are so remote in the chain of
relation to the maintenance of public order that preventive
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detention on account of them cannot, in our opinion, fall
within the purview of Entry I of List II...........The
connection contemplated must, in our view, be real and
proximate., not far-fetched or problematical."
The decision, in our view, lays down the correct test. The
limitation imposed in the interests of public order to be a
reasonable restriction, should be one which has a proximate
connection or nexus with public order, but not one far-
fetched, hypothetical or problematical or too remote in the
chain of its relation with the public order.
We shall now test the impugned section, having regard to the
aforesaid principles. Have the acts prohibited under s. 3
any proximate connection with public safety or tranquility ?
We have already analysed the provisions of s. 3 of the Act.
In an attempt to indicate its wide sweep, we pointed out
that any instigation by word or visible representation not
to pay or defer payment of any exaction or even contractual
dues to Government, authority or a landowner is made an
offence. Even innocuous speeches are prohibited by threat
of punishment. There is no proximate or even forseeable
connection between such instigation and the public order
sought to be protected under this section. We cannot accept
the argument of the learned Advocate General that
instigation of a single individual not to pay tax or dues is
a spark which may in the long run ignite a revolutionary
movement destroying public order. We can only say that
fundamental rights cannot be controlled on such hypothetical
and imaginary considerations. It is said that in a
democratic set up there is no scope for agitational approach
and that if a law is bad the only course is to get it
modified by democratic process and that any instigation to
break the law is in itself a disturbance of, the public
order. If this argument without obvious limitations be
accepted, it would
837
destroy the right to freedom of speech which is the very
foundation of democratic way of life. Unless there is a
proximate connection between the instigation and the public
order, the restriction, in our view, is neither reasonable
nor is it in the interest of public order. In this view, we
must strike down s. 3 of the Act as infringing the
fundamental right guaranteed under Art. 19(1)(a) of the
Constitution.
The learned Advocate General then contended that the section
is severable and that if so severed, the section may be made
to function within the limited field that stands the test of
Art. 19(2) of the Constitution. He asks us to read the
section as follows :
"Whoever, by word, either spoken or written, or by signs or
by visible representations, or otherwise, instigates,
expressly or by implication, any class of persons not to pay
or to defer payment of any liability, and whoever does any
act, with intent or knowing it to be likely that any words,
signs or visible representations containing such instigation
shall thereby be communicated directly or indirectly to any
class of persons, in any manner whatsoever, shall be
punishable with imprisonment which may extend to six months,
or with fine, extending to Rs. 250, or with both."
By so doing he argues that instigation of a class of persons
only is made liable and thereby the section is rid of the
vice of unconstitutionality.
The doctrine of severability vis-a-vis the fundamental
rights is sought to be supported on the basis of the wording
of Art. 13(1) of the Constitution. Under that Article laws,
in so far as they are inconsistent with the provisions of
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Part III, ire void only to the extent of such inconsistency.
But this implies that consistent and inconsistent parts of a
law are severable. This doctrine in its relation to
fundamental rights was considered by this Court in three
decisions. In Romesh Thapper’s case (1) such an. argument
has been repelled by this Court. Patanjali Sastri, J., as
he then was, stat@d the legal position thus at p. 603:
(1) [1950) S.C.R. 594, 600, 601 602.
838
Where a law purports to authorise the imposition of
restrictions on a fundamental right in language wide enough
to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting
such right,it is not possible to uphold it even so far as it
may be applied within the constitutional limits, as it is
not severable. So long as the possibility of its being
applied for purposes not sanctioned by the Constitution
cannot be ruled out, it must be held to be wholly
unconstitutional and void."
In Chintaman Rao v. The State of Madhya Pradesh the same
principle is again restated. Mahajan, J., as he then was
observed at p. 765:
The law even to the extent that it could be said to
authorize the imposition of restrictions in regard to
agricultural labour cannot be held valid because the
language employed is wide enough to cover restrictions both
within and without the limits of constitutionally
permissible legislative action affecting the right. So long
as the possibility of’ its being applied for purposes not
sanctioned by the Constitution cannot be ruled out, it must
be held to be wholly void."
The wide reach of this principle appears to have been
circumscribed to some extent in a later decision of this
Court in R. M. D. Chamarbaugwalla v. The Union of India (2).
In that case the constitutionality of ss. 4 and 5 of the
Prize Competitions Act (42 of 1955) was challenged on the
ground that prize competition’ as defined in s. 2(d) of the
Act included not merely competitions that were of a gambling
nature but also those in which success depended to a
substantial degree on skill. This Court, having regard to
the history of the legislation, the declared object thereof
and the wording of the statute, came to the conclusion that
the competitions which were Sought to be controlled and
regulated by the Act were only those competitions in which
success did not depend to any substantial degree on skill.
That conclusion was sufficient to reject the contention
raised in that case; but even on the assumption that
(1) [1950] S.C.R. 759.
(2) [1957) S.C.R. 930.
839
prize competition as defined in s. 2(d) of the Act included
those in which success depended to substantial degree on
skill as well as those in which it did not so depend, this
Court elaborately considered the doctrine of severability
and laid down as many as seven rules of construction. On
the application of the said rules it was held that the
impugned provisions were severable in their application to
competitions in which success did not depend to any
substantial degree on skill.
The foregoing discussion yields the following results: (1) "
Public order " is synonymous with public safety and
tranquillity : it is the absence of disorder involving
breaches of local significance in contradistinction to
national upheavals, such as revolution, civil strife, war,
affecting the security of the State; (2) there must be
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proximate and reasonable nexus between the speech and the
public order; (3) s. 3, as it now stands, does not establish
in most of the cases comprehended by it any such nexus; (4)
there is a conflict of decision on the question of
severability in the context of an offending provision the
language whereof is wide enough to cover restrictions both
within and without the limits of constitutionally
permissible legislation; one view is that it cannot be split
up if there is possibility of its being applied for purposes
not sanctioned by the Constitution and the other view is
that such a provision is valid if it is severable in its
application to an object which is clearly demarcated from
other object or objects falling outside the limits of
constitutionally permissible legislation; and (5) the
provisions of the section are so inextricably mixed up that
it is not possible to apply the doctrine of severability so
as to enable us to affirm the validity of a part of it and
reject the rest.
It is not necessary in this case to express our preference
for one or other of the foregoing decisions. Assuming that
the summary of the rules of construction given in the last
of the cases cited supra are correct and exhaustive, we are
not satisfied that in the instant case the impugned section
with the
107
840
omissions suggested by the learned Advocate General could,
wholly or to any extent, be salvaged. The words of the
section with the suggested omissions continue to suffer
from the same vice they are subjected to without the said
omissions. The Suggested omissions from the section only
exclude individuals from the operation of the section and
confine it to a class of persons and in other respects it is
not freed from the defects already pointed out by us. In R.
M. D. Chamarbaugwalla’s Case (1) the difference between two
classes of competitions, namely, those that are of gambling
nature and those in which success depends on skill, is
clear-cut and has long been recognized in legislative
practice. But in the present case it is not even possible
to predicate with some kind of precision the different
categories of instigation falling within or without the
field of constitutional prohibitions. The constitutional
validity of a section cannot be made to depend upon such an
uncertain factor. Whether the principle of the first two
decisions is applied or that of the third is invoked, the
constitutional validity of the section cannot be sustained.
We, therefore, hold that s. 3 of the Act is void as
infringing Art. 19(1)(a) of the Constitution. The, entire
section therefore must be struck down as invalid. If so,
the prosecution of the respondent under that section is
void.
The learned Advocate General made an impassioned appeal to
persuade us to express our view that though the present
section is void on the ground that it is an unreasonable
restriction on the fundamental right, in the interests of
public order the State could legitimately re-draft it in a
way that it would conform to the provisions of Art. 19(2) of
the Constitution. It is not this Court’s province to
express or give advice or make general observations on
situations that are not presented to it in a particular
case. It is always open to the State to make such
reasonable restrictions which are permissible under Art.
19(2) of the Constitution.
In the result, the appeal is dismissed.
Appeal dismissed.
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(1) [1957] S.C.R. 930.
841