THAPPAR I/. THE STATE OF MADRAS [SHR1 HAR1 LAL KANIA C. J v. Brown (205 U. S. 179.) and Hooney v. Kolohan (294 U. S & Anr.

the printer, started weekly publisher and editor of a journal in English called Cross. Roads printed and published in Bombay. The Government of Madras, their powers in exercise of respondents herein, the Madras Maintenance of under section 9(1-A) of Public Order Act, 1949 impugned Act) purported to issue an order No. MS. 1333 dated 1st March, 1950, whereby they imposed · a the journal in ban upon that State. The order was published in the Fort St. George Gazette and the notification ran as follows :- the entry and circulation of (hereinafter referred to as "In exercise of the powers conferred by section 9 (1-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXlII of 1949) His Excellency Governor of Madras, being satisfied that for the purpose of securring the public safety and the maintenance of puolic order, it is necessary so to do, hereby prohibits, with effect on and from the, date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay." The petitioner cl; iims that the said order contravenes the fundamental right of the petitioner to freedom of . (1) Sec the .headnote to Brij Bhus.%an v. The Stale of Delhi, p. 60~ Infra. 6-5 S. C. India 1N.Dl 58 1950 R...,sh 1'happar v. T "- Slau of Madras. Palanjali Sastri]. 596 SUPREME COURT REPORTS l1950] speech and expression conferred on him by article 19 ( 1) (a) of the Constitution and he challenges the valid ity of section 9 (1-A) of the· impugned Act as being void und~r article 13 ( 1) of the Constitution by reason of its being aforesaid. inconsistent with his fundamental indeed for bail jurisdiction applications this Court directly the petitioner should instance. He contended The Advocate-General of Madras appearmg on be half of the respondents raised a prelimmary objection, to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting for such relief in the that, as a matter of orderly procedure, resort to the High Court at Madras which under article 226 of the Constitution has concurrent to deal with the matter. He cited criminal revision petitions section 435 ot the Criminal Procedure Code, transfer applications under section 24 of the Civil Procedure Code as jurisdiction having been stances where, concurrent given in certain matters the High Court and lower grade, a rule of practice has been Court of a established should proceed that a party to the High relief before resorting latter Court for Court. He referred to Emperor v. Bishes11Jar Prasad such a rule of practice was enforced in Sinha( 1 ) where a criminal revision case, and called our attention to certain American decisions Urquhart v. Brown(') and Hooney v. Kolohan( ') as States ordinarily the United Supreme Court of required· remained judicial open to the applicant in Federal . ancl State Courts should Supreme Court-be it habeas corpus or certiorari would be allowed. We are of opinion that neither the learned Advocate-General instances mentioned by the referred the American decisions to by him are really analogous to the remedy afforded by article 32 of the Indian Constitution. That article does not merely confer power on this Court, as article 226 does on the i'j 20s u. 5. 179. exhausted before that whatever (') 294 U.S. W remedies· showing remedy (') I. L, R. 56 All. l58. S.C.R. . SUPREME COURT REPORTS 597 jurisdiction. High Courts, to issue certain writs for the enforcement of the rights conferred by Part III or for any other In that purpose, as part of its general appropriately placed case it· would have been more among articles that jurisdic 131 to 139 which define tion. Article 32 provides a "guaranteed" remedy for rights, and this remedial right the enforcement of those included in is itself made a fundamental right by being Part UL This Court is thus constituted the protector it cannot, and guarantor of fundamental responsibility so consistently with the upon it, refuse protection applications again.~t infringements of such rights. No similar pro vision is to be found in the Constitution of the United that the American and we States decisions are in point. rights, and do not consider to entertain seeking 1930 Romesh T happar v. The Stale of Madras. Patanjali Sastri, J. Turning now to the merits, to that Indeed, without there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas, and that . freedom is ensurt:d / by the freedom of circulation. "Liberty of circulation is as esscn tia I freedom as the liberty of publica tion. publication circulation fackso11(1 ). Sec would be of little value". Ex parte also Lovell v. City of Griffin( 2). It is therefore per fectly clear that the order of the Government of Madras would be a Yiolation of the petitioner's fundamental right under article 19(1) (a), unless section 9 (I-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 w!iich (omitting immaterial words regarding laws relat ing to libel, slander, etc., with which we are not con cemed in this case) saves the operation of any "exist ing law it relates to any matter which the security of, or tends to overthrow, the undermines State." The question accordingly arises whether impugned Act, in so far as it purpo:-ts by section 9(1-A) to authorise the Provincial Government pose of ''ecming tlie maintenance the public safety or to prohibit or regulate the entry ·of public order, "for the far as in so ( 1) 96 u,s. 727. (') 303 U.S. 444. 1950 Ronush T happar v. Tiu State of Madras. Patanjali Sastri, J. 598 SUPREME COURT REPORTS [ 1950] or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class relating. to any matter which of documents" is a "law undermines the security of or tends to overthrow State." I of List comprises they have the content of "public order" is the government which II of the Seventh Schedule "the maintenance of public order" . The impugned Act was passed by the Provincial Legislature in exercise of the power conferred upon it by section 100 of the Government of India Act, 1935, read with Entry that Act, which among other matters, "public order." Now an expression of wide connotation and signifies that state of tranquil titc members of a political lity which prevails among society as a result of the internal regulations enforced established. Although section 9 (1-A) refers to "securing the public safety" and distinct purposes, it must be taken that "public safety" is used as a part of the wider concept of public order, to signify any matte1 for, if public safety were intended the expres distinct from and outside sion "public order," it would not have been competent for the Madras Legislature to enact safety. This indeed was not far as it relates to public it was disputed on behalf of the urged that the expression pugned Act, which the Province, and, and order, means the security of therefore, "the security of the State" within the meaning of article 19 (2) as "the State" has been defined article 12 as including, among other things, the Govern ment and the Legislature of each of the erstwhile Pro vinces. Much reliance was placed view on Rex v. Wormwood Scrubbs Prison(') where it was held that the phrase "for securing the public. safe ty and the defence of the realm" in section I of the (Consolidation) Act, 1914, was Defence of the Realm not limited foreign against internal dis foe but included is not of order such as a rebellion. The decision much assistance respondents. But "public safety" in the to securing the c~untry against a to the respondents also protection as the context in support of is a statute the provision relating (') L.R. [1920] 2 K.B. 305. 1950 Romnh T hap/HJt v. The S1aJe of Madras. PaJanjali Sastri, J. S.C.R. SUPREME COURT REPORTS 599 the aim which the words "public safety" occurred in showed unmistakably safety," nor does it appear quired an.y technical signification as words of art. that Act the security of the State in view. Our attention has not been the expression "public that the words have ac to any definition of "offences security of the context. and morals" convenience, decency, lists waging war against the "offences affecting riding on a public way In to prevent dangers "Public safety" ordinarily means that sense, public or their freedom from danger. anything which to public health may also be regarded as securing ,public safety . . The meaning of the expression must, however, vary In the classification of offen according to ces in the Indian Penal Code, for instance, Chapter XIV the public health, enumerates safety, (sec includes rash driving or (section 280), tion 279) and rash navigation of a vessel safety, while among others, as offences against public Chapter VI the Queen (section 121), sedition (section 124-A) etc. as "offences against the State", because they are calculated to undermine or affect the security of the State, and Chapter. VIII tranquillity" defines against rioting which include unlawful assembly (section 141) (section between classes pr~moting enmity (section 153-A), affray (section 159) etc. Although in law and order the context of a statute "securing public safety" may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and It was said not necessarily the security of the State. that an enactment which provided for drastic remedies like preventive detention and ban on newspapers must be taken to relate to matters affecting the security of than trivial offences like rash driving the State rather impugned Act. or an affray. But whatever ends and whatever intended to subserve, may have been its framers may have had in view, its application and scope cannot, the absence of limiting words in the statute those aggravated restricted forms of prejudicial activity which are calculated itself, be relating public 146), 1950 Ro""'h Thappar v. The Stall of Madras. Patanjali Sastri, J. 600 SUPREME COURT REPORTS f1950l is there any endanger the security of the State. Nor guarantee that to exercise the powers under the Act will in using them discriminate between those who act prejudicially to the security of the State and those who do not. those authorised overthrow the responsibility of combating The Government of India Act, 1935, nowhere used it made the expression "security of the State" though provision under section 57 for dealing with crimes of violence intended the Government. While the administration of law and order including the maintenance of public order was placed in charge of a Minister elected by the people, the Governor was entrusted with operations of persons who "endangered the peace or tranquillity of the Province" by committing or at tempting "to commit "crimes of violence intended overthrow article 352 the Government."' Similarly, of the Constitution empowers the President to make a·. Proclamation of Emergency when he is satisfied the "security of India or any part of the territory thereof is thr~atene<l by war or bv external aggression or by internal recognise These that disturbance of public peace or tranquillity may assume such grave proportions as the secu rity of the State. disturbance." to threaten provisions riots, assemblies, "Unlawful feature, namely, As Stephen in his Criminal Law of England ( 1 ) serves : insurrections, rebellions, levying of war, are offences which run each other and are not capable of being marked off by them have perfectly defined boundaries. All of common one the normal tran quillity of a civilised is in each of the cases society either by actual force or at least mentioned disturbed threat of the show and offences thus tranqua. lity and are ·against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by (')Vol. TT, p. 242. involve disturbances of public in theory offences it." Though all 1950 llomesh ThaptmT v. The Stale oj Madras. Patlllijali Sastri, ]. S.C.R. SUPREME COURT REPORTS 601 imposing those offences it, and made the security of their prevention its overthrow could in article 19 (1), has placed the foundations of the State or Indian Penal Code. Similarly, the varying criteria restrictions on justify curtailment · of to freedom of speech and expression, while "sub-clause (b )" and the Constitutiop., for permissible in formulating fundamental legislation in a rights enumerated against public order distinct category the State or which aim at undermining the sole overthrowing justification for legislative abridgement of. freedom of that is to say, nothing lcrs than speech and expression, threaten endangering rights right of peaceable assembly be restricted right of association "sub-clause ( c)" may interests under clauses of "public order", which is also security of (Concurrent List) noticeable of the Seventh Schedule, which refers to the "security of a State" and "maintenartce . ·of public order". as. distinct subjects of legislation. Th~ Constit~tio~ thus requires a line to be drawn in the field of public order or tranquillity marking off, may be, roughly, the boun serious and aggravated forms of dary between public disorder which are calculated the State and the relatively minor breaches security of of the peace of a purely local significance, this purpose differences in degree they were differences in kind. ( 4) of article 19 in the in those clauses State. The in Entry 3 of List differentiation Ill to endanger ( 3) and includes treating (2). article was before 19 It is also worthy of note the word "sedition" which occurred in article ,13 (2) of the Draft Constitu the· Drafting Committee was tion prepared by passed as deleted article it may recalled that the Federal Court had, in defining sedition in Niharendtt Dutt Majumdar v. The King Em peror( 1 that "the acts or words complained of must either intention or satisfy tendency'', but incite to disorder or must be such as that is reasonable men Privy Council connection overruled ), held finally In ( 1 ) [1912] F.C.R. 38. 1950 v. Tlw S<a1< ef Matku. P°'flllia/i Sanri, ]. 602 SUPREME COURT REPORTS [1950] . for restricting v. 13 (2), to excite therefore, the word the State. "sedition" the freedom of expression and of reaffirmed the view express decision and emphatically ed in Tilak's case( 1 ) that "the offence the effect others consisted ·in exciting or attempting the Government and not certain bad feelings towards in exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small"-· Sadashiv Narayan Bhalerao ('). King Emperor the draft Deletion of article that criticism of Government exciting disaffection or bad feelings regarded as a justifying ground wards it is not to be security of press, unless it is such as to undermine the It is also significant or tend to overthrow that the corresponding Irish formula of "undermin the State" ing the public order or the authority of [article 40 (6) (i) of the Constitution of Eire, 1937] did not apparently find favour with Indian Constitution. Thus, very narrow and stringent limits have been set to permissible legislative abridge ment of the right of free speech and expression, and this was doubtless due to the realisation that freedom of speech and of the press lay at the foundation of all political democratic organisations, discussion no public education, so essential proper functioning of the processes of popular govern ment, is pos, ible. A freedom of such amplitude might involve Constitution may well have reflected, with Madison who was "the leading spirit in the preparation of the First Amendment of "it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, the proper fruits": [Quoted in Near v. Mi1111esotta (')]. the Federal Constitution," the framers of the vigour of those yielding for without abuse. But framers of injure restrict We are therefore of opinion that unless a law ing freedom of speech '11<1 expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within (2) of article 19, although the reservation under clause ( 1) 22 Botn. 112. (z) L.R. 74 I. . .\. $9. ·') 282 U.S. 607. 717-8 1950 Romesh T happat V. The Slate of Madras. Patanjali Sastri, ]. S.C.R. SUPREME COURT REPORTS 603 restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9 (1-A) which authorises imposi for the wider purpose of securing tion of restrictions public safety or the maintenance of public order falls outside restrictions under clause (2), and is therefore void and unconstitutional. authorised scope of include covered to accede section 9 (1-A) It was, however, argued that 'Vhere a law purports to authorise the not he considered wholly void, as, under article 13(1 ), inconsistent with a fundamental an existing the extent of the inconsistency and no is void only more. · In so far as the securing of the public safety or the maintenance of public order would impugned provision, as State, security of latter purpose, was applied it was said, be held clause (2) of article 19 and must, this conten to he valid. We are unable imposi tion. tion of restrictions on a fundamental right in language restrictions both within and wide enough without permissible legislative action affecting_ such right, it is not possible to uphold it even so far as if may be applied within is not severable. So a:s the constitutional 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. (2) of article 19 having allow In other words, clause freedom of speech and expression only the State is involved, an enactment, which is capable to cases where no such danger could of being applied arise, cannot be held to be constitutional and valid to any extent. to cover lirpits of constitutionally in cases· where danger the imposition of restrictions on limits, The application therefore allowed and the order of the respondents prohibiting the entry and circula tton of the petitioner's journal in the State of Madras is hereby quashed. FAZL Au J.-For the reasons given by me in B1'ij Bhushan and Another v. The State( t ), which practically Fa~l Ali ]. ( 1) [19:0] S.C.R. 601. Ronush Thappar v. Ti.. Sia/I of Madras. Fad Ali,]. 604 SUPREME COURT REPORTS [1950} involves the same question as is involved in this case,. I hold that the reliefs sought by the petitioner cannot . peti be granted. tion, but supplement what I have said in the other case. this view, I would dismiss this like to add a few observations I should In to us, trend of to me that the validity of in article 19 (2) of requirements laid down its scope and necessity and it would appear in the ultimate analysis this case the peace and It appears to be decided real question is whether "disorders involving menace quillity of the Province" and ailecting "public safety" will be a matter which undermines the security of the words quoted I have borrowed State or not. the preamble of the Act within inverted commas from which shows the question raised before us attacking the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must be, then law which the impugned prohibits entry the State of Madras of "any document or class of documents" for securing public safety and maintenance of··public order ,,hould satisfy the arguments ad Constitution. From if a document dressed entry could be validly prohibited, be seditious, its is a matter which undermines the other hand, the security of document is calculated tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine security of the State. Speaking for myself, I cannot In Brij Bhushan and understand Another v. The State( 1 ), I have quoted good authority to show that sedition owes its gravity to its tendency to create disorders and an authority on criminal like Sir James Stephen has classed sedition as an If so, how could offence against public tranquillity. sedition be a matter which would undermine the secu rity of the State and public disorders and disturbance of public safety will not be such a matter? It was argued riot or a affray will not that a ( 1) [19;0) S.C.R. 605. the State ; but if, on to disturb public argument. sedition 1950 Romtsh T hap/HJ• v. The Stau qf Madras. Faz.I Ali,]. S.C.R. SUPREME COURT REPORTS 605 the security of the State, but to this line of undermine argument there is a two-fold answer :- ( 1) The Act, as its preamble shows, is not intended disorders involving menace for petty disorders but for to the peace and tranquillity of the Province, (2) There arc degrees of gravity the offence of sedition also ahd an seditious isolated piece of writing of mildly character by one insignificant individual may not also, layman's point of view, be -a matter which the securitv of the State, but that would undermines It not affect the law whi~h aims at checking sedition. was also said that used by the State executive, but misuse of the law We are here concerned with shall not pursue the matter enough on the subject in the connected c~se. the law as it stands may be mis is another. I I have said the latter aspect only. further as thing and its being unconstitutional Agent for the petitioner :-K. /. Kale. Agent for the opposite party :-P. A. Mehta. 1950 May 26. Petition allotved. BRIT BHUSHAN AND ANOTHER ti. THE STATE OF DELHI. [SHRI HARILAL KANIA C.J., SAIYID FAZL Au, PATANJALI SASTRI, MEHR CHAND MAHAJAN, MuxHERJEA and DAs JJ.J Constitution of India. A1·t. 19. els. (I )(a) and (2)-Fundamental right of freedom of speech and expreuion-Law imposing pre-censor ship on newspapers for securing public safety and preventing public disorder-Validity-Matter disturbing public safety or causing pub lic disorder, whether "undermines the secut·ity of, or tends to over throw, the State"-Scope of Art. 19. cl. (2)-East Punjab Public Safety Act, 1949, sec. 7 (I) (c)-Validity. Section 7 (I) ( c) of the East Punjab Public Safety Act, 1949, as extended to the Province of Delhi provided that "the Provin cial Government or any authority authorised by it in this behalf, if satisfied that such action is necessary for preventing· or combat ing any activity prejudicial to the public safety or the mainten ance of public order may, by order in writing adGresscd to a printer, publisher or editor require that any matter relating to a ) -!