# 7 I ; MAOHU LIMA YE v. SUB-DIVISIONAL MAGISTRATE, MONGH\'I~ & ORS

- **Citation:** [1971] 2 S.C.R. 711
- **Court:** Supreme Court of India
- **Decided:** 1970-10-28
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/7-i-maohu-lima-ye-v-sub-divisional-magistrate-mongh-i-ors-5232
- **Pages:** 31

## Headnote

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7 I ;
MAOHU LIMA YE
v.
SUB-DIVISIONAL MAGISTRATE, MONGH\'I~ & ORS.
October 28, 1970
[M. llcDAYATULLAH, C.J., J. M. SHELAL
\". BHARGAVA.
G. K. MITTER, C. A. VAIDIALINGAM, A. N. RAY
AND I. D. DuA, JJ.]
Code of Criminal Procedure (5 of 1898), ·" 144 and C/ui(Jier VIII-I.•
1io/e1tfre of Art. 19 of Constitution,
On the questions : (I) Whether s. 144 and. 1 2) Ch. Vil! of the Criminal Procedure Code, 1898, violated Art. 19(al. (bl. (c) and (d) ot
the Constitution,
HELD (By Full Court): 1 (a) Article 19(2)
of the Constitution.
which was substituted with retrospective effect by the. Constitution (First
Amendment) Act, 1951, must be held to have been in foi;&e from 26t~
January 1950. [719 BJ
(b) The fiction in the amendment is to make the Constitution be rcau
"ith the new clause and no other, and a law restricting the freedom i11 the
imerests of public order (among others), or in the interest of the general
public, must be held to be saved, not as a result of the amendment but
because of these available restrictions operating from the inception of. the
Constitution, that is, from January 26, 1950. Whatever may be said of
a law declared unconstitutional before the First Amendment, cannot be
said of a law which is being considered today after the First Amendment.
[718 G-H; 719 Al
(.c) rn this Court the doctrine di 'preferred position' for fundamental
rights has never found ground.
All existing laws are continued till this
Court declar!s them to be in conllict with a fundamental right and, the
burden is on the person who contends that a particular law has become
mid after the coming into force of the Constitution by reason of Art.
13 (I) read with any of the guaranteed freedoms.
The burden is not on
the State to prove the reasonableness of the restriction. [721 C-GJ
(d) The expression 'in the interest df public ordc·r' in Art. 19(2) of
the Constitution is wider than 'maintenance of public order', because, a
law may not have been designed to directly. maintain public order and yet
it may have been enacted in the Interest of public order; and 'public
order' is capable of taking within itself not only the absence of those acts.
which disturb the security of the State or the absence of insurrection, riot,
turbulence or crimes of violence, but also absence of certain acts, whioh
dislUrb public tranquillity or are breaches of peace. It wlll not however
take in anv of the acts which disturb onlv the seniority of others. [722-A-B;
124 E-HJ
Ramjilal M.Qdl v. State of U.P. [1957] S.C.R. 860, Viremlm '" State
of Punjab, [1958] S.C.R, 308 and Dr. Ram Manohar Lohia v. State of
Bihar, [1966] 1 S.C.R. 709, followed.
Superintendent, Central Prison Fategarh
v.
Ram Manohar Lohia
[1960] 2 S.C.R. 821, referred to. ·
'
. ( e) The area of detention by a Magistrate under the Code of Criminal
Pr<!<=edure. and the area under the laws relating to preventive detention are
enttrely different.
In the case of prevention detention of persons without .
712
SUPREME COURT REPORTS
[1971] 2 S.C.R.
trial on the subjective determination of the e;i:ecutive this Court has con1ined the meaning of the expression 'maintenance of public order' te graver
episodes. But that consideration need not always apply becau•e local disturbances of the even tempo of life also affect 'public order' in the sense
of a state of law abidingness vis-a-vis the safety cif others.
[725 E-G; 726 A-Bl
(f) The gist of action under s. 144 is the urgency of the situation and
its efficacy in the likelihood of being able to prevent some harmful consequences. It is not an ordinary power flowing from administration but a
power used in a judicial manner and which can stand 'further judicial
scrutiny.
As it is poss lb le to act under the section absolutely and even
ex-parte the emergency must be sudden and the consequences sufficiently
_grave. Therefore, the matter falls within the restri9tions which the 'constitution itself visualises as permissible in the interest of public order or in
the interes

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7 I ;
MAOHU LIMA YE
v.
SUB-DIVISIONAL MAGISTRATE, MONGH\'I~ & ORS.
October 28, 1970
[M. llcDAYATULLAH, C.J., J. M. SHELAL
\". BHARGAVA.
G. K. MITTER, C. A. VAIDIALINGAM, A. N. RAY
AND I. D. DuA, JJ.]
Code of Criminal Procedure (5 of 1898), ·" 144 and C/ui(Jier VIII-I.•
1io/e1tfre of Art. 19 of Constitution,
On the questions : (I) Whether s. 144 and. 1 2) Ch. Vil! of the Criminal Procedure Code, 1898, violated Art. 19(al. (bl. (c) and (d) ot
the Constitution,
HELD (By Full Court): 1 (a) Article 19(2)
of the Constitution.
which was substituted with retrospective effect by the. Constitution (First
Amendment) Act, 1951, must be held to have been in foi;&e from 26t~
January 1950. [719 BJ
(b) The fiction in the amendment is to make the Constitution be rcau
"ith the new clause and no other, and a law restricting the freedom i11 the
imerests of public order (among others), or in the interest of the general
public, must be held to be saved, not as a result of the amendment but
because of these available restrictions operating from the inception of. the
Constitution, that is, from January 26, 1950. Whatever may be said of
a law declared unconstitutional before the First Amendment, cannot be
said of a law which is being considered today after the First Amendment.
[718 G-H; 719 Al
(.c) rn this Court the doctrine di 'preferred position' for fundamental
rights has never found ground.
All existing laws are continued till this
Court declar!s them to be in conllict with a fundamental right and, the
burden is on the person who contends that a particular law has become
mid after the coming into force of the Constitution by reason of Art.
13 (I) read with any of the guaranteed freedoms.
The burden is not on
the State to prove the reasonableness of the restriction. [721 C-GJ
(d) The expression 'in the interest df public ordc·r' in Art. 19(2) of
the Constitution is wider than 'maintenance of public order', because, a
law may not have been designed to directly. maintain public order and yet
it may have been enacted in the Interest of public order; and 'public
order' is capable of taking within itself not only the absence of those acts.
which disturb the security of the State or the absence of insurrection, riot,
turbulence or crimes of violence, but also absence of certain acts, whioh
dislUrb public tranquillity or are breaches of peace. It wlll not however
take in anv of the acts which disturb onlv the seniority of others. [722-A-B;
124 E-HJ
Ramjilal M.Qdl v. State of U.P. [1957] S.C.R. 860, Viremlm '" State
of Punjab, [1958] S.C.R, 308 and Dr. Ram Manohar Lohia v. State of
Bihar, [1966] 1 S.C.R. 709, followed.
Superintendent, Central Prison Fategarh
v.
Ram Manohar Lohia
[1960] 2 S.C.R. 821, referred to. ·
'
. ( e) The area of detention by a Magistrate under the Code of Criminal
Pr<!<=edure. and the area under the laws relating to preventive detention are
enttrely different.
In the case of prevention detention of persons without .
712
SUPREME COURT REPORTS
[1971] 2 S.C.R.
trial on the subjective determination of the e;i:ecutive this Court has con1ined the meaning of the expression 'maintenance of public order' te graver
episodes. But that consideration need not always apply becau•e local disturbances of the even tempo of life also affect 'public order' in the sense
of a state of law abidingness vis-a-vis the safety cif others.
[725 E-G; 726 A-Bl
(f) The gist of action under s. 144 is the urgency of the situation and
its efficacy in the likelihood of being able to prevent some harmful consequences. It is not an ordinary power flowing from administration but a
power used in a judicial manner and which can stand 'further judicial
scrutiny.
As it is poss lb le to act under the section absolutely and even
ex-parte the emergency must be sudden and the consequences sufficiently
_grave. Therefore, the matter falls within the restri9tions which the 'constitution itself visualises as permissible in the interest of public order or in
the interest of general public. [727 D-F; 728 A-Bl
(g) Ordinarily the order would be directed against a person found
.acting or likely to act in a particular way.
But the effect of the oroer
being in the interest of publiq order and in the interests of general public,
«casions maf arise. when it is not possible to distinguish between those
whose conduct must be controlled and those whose conduct is clear. A
,general order may be necessary when the number c!f persons is so large
that the distinction between them and· the general public cannot be made ..
A general order is thus justified, but if the action is too general, the order
may be questioned by appropriate remedies for which there is ample provision in law. A person affected by the order can ask the order to be vacat-.
ed as against him, he can file a revision and even a petition for issue of
a writ. The restraint is temporary, the power is
exercised by senior
Magistrates who have to make a judicial enquiry and give reasons for the
order with an opportunity to an aggrieved person to have ·;1 rescinded
either by the Magistrate or by superior courts. Therefore, the section i!
not unconstitu!ional if properly applied and the fact it may be abmed is
no ground for striking ll down. rt it is abused, the remedy is to question
the exercise of the power as being outside the grant of law.
t728 F-H; 729 A-CJ
Babula/ Parate v. State of Mahai .. :htra, [1961] 3 S.C.R. 423 and State
of Bihar v. K. K. Misra, (1969] 3 S.C.R. 423, referred to.
2(a) (Per Hidayatullah, C.J., Shela!, Mitter, Vaidialingam, Ray and
Dua, JJ.) Both ss. 106 and 107 in Ch. VIII of the Code, are counter
parts of the &an1e policy, the first applying when by reason of the convic·
tion c!I the person, his past conduct leads to an apprehension for the future
and the second applying wh~re the Magistrate, on information, is of the
opinion that unless prevented from so acting, a person is likely to act to
the detriment of public peace and public tranquillity. Section 107 enables
certain specified classes of Magistrates to make an order calling upon a
person to show cause why he should not be ordered to execute a bond with
·Or without sureties for keeping the peace for such period not exceeding one
year as the Magistrate thinks fit to fix. The condition for taking action is
that the Magistrate is jnformed and he is of the opinion that there is sufli·
cient ground for proceeding that a person is likely to commit a breach of
peace or disturb the public tranquillity or to do any wrongful act that may
probably occasion a breach of peace or disturb the public tranquillity. The
-section is aimed at persans who cause a reasonable apprehension of con~
duct likely to lead to a breath of the peace or disturbance to the public
tranquillity. [729 H; 730 A-B, F-G]
The proo:edur:e for taking action is ~et out in the .re111alning ~ections of
the Chapter. The gist c!f the Chapter 1s the prevention of crur.es
~nd
<listurbonces of public tranquillity and breaches <'f the peace. 'The actwn
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MAOHU LIMAYE V. ~UB-DIV. MAGISTRATE
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·being preventive is not based on overt acts but on the potential danger to
be averted. But the provision is not a Jaw for detention contemplated by
Art. 22.
Primarily, the provisions enable the Magistrate to require the
execution of a bond and not to detain a person. Detention results only
on default of the execution of a bond. The person sought to be bound
over has rights which the trial of a summons case confers on an accused.
The law requires the Magistrate to state his reasons and the order is
capable of being questioned in superior courts. These provisions are thus
essentially conceived in the interest of public order and in the interest of
the general public. If the prevention of crimes and breach of peace and
~isturbance of public tranquillity are directed tQ the· maintenance of the
even !empo of community life they are in the interest c:/f public order, and
there is nothing contrary to Art. 19(1), (a), (b), (c) and (d), becaule,
the limits of the restrictions are well within els. ( 2), ( 3), ( 4) and ( 5) of
the A-rticle. Therefore, the Chapter is constitutionally valid.
"f.729 G; 734 0-H; 735 H; 736 A·CJ
.
.
(b) Section 117(3) enables the Magistrate to.ask for an interim bond
pending the completion of inquiry by him. Section 117(1) and (2) require the Magistrate to inquire into the truth of the information that the
person brought before him is likely to commit a breach of the peace or
dist\lrb the tranquillity.
Hence, the Magistrate must proceed to inquire
into the truth of the information and it is only after prima facie satisfying
himself about the truth of the information and after recording his reasons
in writing can the interim bond be asked for.
Therefore, it is not open
to a Magistrate to adjourn the case without entering upon an enquiry
and in the interval send the person to jail if he fails to furnish a bond.
[732 H; 734 0-F]
As the liberty of a person is involved and that person is being p·roceeded · against on information and suspicion, it is necessary to put a strict
construction upon the powers of the Magistrate. It would make the
Magistrate's action administrative If he were to pass an order for an
interim bond without entering upon the inquiry and at leasi .Prima faci•
enquiry into the truth df the information on which the order calling upon
the pmon to show cause is based. [733 G; 735 A·B]
In rt : Muthuswaml, I.L.R. [1954] Mad. 335 (F.B.), In rt : V•nkata·
subba Reddy, A.I.R. 1955 A.P. 96; Jagdish Prasad v. State, A.J.R. 1957
Pat. 106; Ja/a/uddin Kunju v. State, A.I.R. 1952 Tr. & Co. 262, Shravan
Kumar Gupta v.
Superintendent, District Jail, Mathura & Ors., A.I.R.
1957 All. 189, Jangir Singh v. State, A.I.R. 1960 Punj. 225; Ramgowda
& Ors. v. State of Mysore, A.I.R. 1960 Mys. 259 and Ratilal Jasraj v.
State, I.LR. [I 956] Born. 385, approved.
Emperor v. Nabibux & Ors. A.I.R. 1942 Sind 86, Du/al Chandra
Monda/ v. State, A.LR. 1953 Cal. 238, Gani Ganai & Ors. v. State, A.l.R.
1959 J. & K. 125 and Laxmi Lal v. Bherulal A.LR. 1958' Raj. 349, overruled.
( c) There is no room for invocation of ss. 55 or 91 of the Code of
Criminal Procedure in considering the effect of Chapter Vil. [736 0]
Vasudeo Ojha & Ors. v. State of U.P. A.LR. 1958 All. 578, overruled.
(d) Bail is only for continued appearance of a person and not to prevent him 'from committing certain acts.
To release a person being proceeded against under ss. 1071112 of the Code is to frustrate the very purpose of the proceedings unless his good behaviour is ensured by taking
a bond in that behalf. [73fr F·GJ
714
SUPREME COURT REPORTS
[1971] 2 S.C.R.
Per Bhargava, J. : (a) Under s. 107 the Magistrate takes action when
he is informed that any person is likely to commit a breach of peace or
disturb the public tranquillity 011/y afler forming an opinion that there is
sufficient ground for proceeding against him.
He canncit -start prooeedings merely on in'formation. The Magistrate can form his opinion on the
basis of the information supplied to him if he finds that the information
given is in sufficient detail and reliable enough.
If the information is, not
sufficient, it will be his duty to hold further inquiry and satisfy himself
that it is a lit case where action should be taken because sufficient grounds
exist. It is e'fter the Magistrate has taken these steps that he can proceed
to make the order under s. 112.
When making that order he has to record in it in writing the substance cf the information received which
necessarily means the part of the information which was the basis of bis
opinion that sufficient grounds exist for initiating the proceedings. It is
at this preliminary stage that the Magistrate is thus required to ensure
that a prima facie case does exist for the purpose of initiating proceedings
against the person who is to be called upon to 'furnish security for keeping
the peace. [737 C-HJ
After the order under s. 112 ha> been issued the procedure under ss.
113 and 114 has to be followed. The proceedings to be taken thereafter
are laid down in s. 117 (I) which requires that as soon as the order under
s. 112 has been read or explained to the'person in court under s. 113 or
to the person who is brought before the Magistrate under s.
114, the
Magistrate has to proceed to inquire into the truth oi the information
upon which the action has been taken and to take further evidence as may
be necessary.
This inquiry has t0 be held in the manner prescribed for
trial of summons cases. Thus, s. 117(1) contains a mandatory direction
to the Magistrate to start proceedings of inquiry as soon as the person in
respect of whom the order under s. 112 has been ma\lc oppears· before
him.
This provision cannot, ho\\·ever, be interpreted as requiring that the
inquiry must begin immediately when the person appears in court, because, it is impracticable to do So.
It is uncertain as to when a person
will appear in court and the Legislature could not have contemplated that
in such contingencies witnesses must be kept in readiness
in the court
awaiting the appearance of the person concerned. Further, since the result
of the inquiry may 'be that the person concerned has to execute a bond,
with the risk of losing his liberty if he defaults, he is entitled to be represented by a lawyer and he can legitimately ask for a reasonable adjournment to enable him to engage a la'>'yer. Therefore, the proper intcrpreta·
ti on o'f .s. 117 ( l) is that the inquiry must begin as soon as it is practicable.
and tl1e Magistrate would b.e committing breach of the direction contained
in this sub-section if he postpones the inquiry with'Out sufficient reasons.
In such a situation, the Magistrate can direct the person in respect of whom
tho order under s. 112 has been made to execute a bond pending comp/e.
tion of the inquiry under s. 117(1). [738 A·B, C·D, E-H; 738 A·C]
(b) This power under s. 117 ( 3) is usually invoked in emergent case<
\\'here the Magistrate has at nn ca·rlicr stage, issued the warrant under s.
144. where· brcac•h of peace cannot be prcvcnti::<l othcr\visc than by in1·
n1ediate arrest.
The Legislature, having empowered a tvlagistrate to issue
a warrant of arrest, naturaily proceeded further to give hin1 power in such
cases to direct that bond for keeping peace be furnished pending comple·
tion of the inquiry.
The exprcs·sion 'completion of the inquiry'' must be
interpreted as the period covered from the beginning of the inquiry until
its conclusion. Such a power is obviously ncce~sary where there is immc~
diate danger of breach of the peace and immediate measures are necessary
for its prevention. When the inquiry is held the coJrectness of the ~nfor~
nlation and the tentative opinion formed ex parte under s. 107 V·nll be
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MADHU LIMAYE V. SUB-DIV. MAGISTRATE
715
properly tested after going through the judicial procedure prc;cribed, ""'i
i'f it is found that there was no justification, the order would be revoked.
Therefore, the grant of the power to the ~fagistratc is a reasonable restriction on the personal liberty of a citizen. It is needed for prC\'Cntion of
crimes and it can only be effective if its exercise is petmitted on the ba~i~
of opinion formed by a competent authority that immediate n1casurcs arc
required. (739 G-H; 740 A-DJ
(c) A person may be detained in jail even prior to a court arriving at
a judicial finding, but such a procedure is not only reasonable but essential.
The power is similar to that given to a Magistrate to order the detention.
as an undertrial prisoner, of a person accused df a cognizable offence even
though, in law, he is deemed to be innocent. (740 E-F]
(d) Further, the validity of the provision should not be judged from
the likelihood of the abuse of the power by the Magistrate. If the hearing
is unnecessarily delayed while keeping the person in detention, the proceedings are liable to be quashed on the ground that the Magistrate has
not complied with the requirements of s. 117(1). [741 A-Cl
Therefore, the power under s. 117(3) can be exercised without the
Magistrate recording evidence and finding a prima facie case a'fter starting
the inquiry under s. 117(1). But, even.on this interpretation s. 117(3) is
valid and is a reasonable restriction under Art. 19(2), (3), (4) and (5).
[741 El
ORIGINAL JuRISD!CTioN : Writ Petitions Nos. 77 and 307 of
1970.
Petition under Art. 32 of the Constitution of India.
W.P. No. 77 of 1970.
Madhu Limaye, appeared in person.
Nur-ud-din Ahmed, K. P. Varma aind D. Goburdhun, for the
respondents Nos. 1 to 4.
F
Niren De, Attorne,v-General, R. H. [)hebar, H. R. Khanna
· and S. P. Nayar, for the Attorney-General for India,
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W.P. No. 301-of 1970.
Madhu Limaye, appeared in person.
Rajendra Chaudhuri and Pratap Singh, tor petitioner No. 2.
, C. K. Daphtary, L. M. Singhvi and 0. P. Rana, for the
respondents.
Nirei1 De, Attorney-Genf!ral for India, R. H. Dhebar, H. R.
Khanna, S. P. Nayar and R. N. Sachthey, for the Attorney-General
for India and Union of India.
lnterveners
S. C. Agarwal and D. P. Singh, for interveners Nos. 1 to 3.
716
SUPREME COURT REPORTS
ri 971) 2 S.C.R.
Nos~4 S~!i ~~ari, S. C. Agarwal and D. P. Singh, for intervener
A
N S. C. Agarwal, D. P. Singh and Asif Ansari for intervener
OS. 4 and 7.
'
Shiva Pujan Singh, for intervener No. 6.
D. P. Singh, for intervener No. 8 .
. The Judgment of Hidayatullah C.J., J. M. Shelat,
G. K.
M1~er, C. A. Yaidialingam, A. N. R:ay and I. D. Dua, JJ., was
d~hvered by ~~dayatu!lah C.J.
V. Bhargava J. delivered a partly
d1ssentmg op1mon.
Hidayatullali, C.J. During the hearing of th~5e petitions !he
constitutional validity of s. 144 and Chapter VlII of the Code of
Criminal Procedure was challenged and this Special Bench was
nominated to consider the issue.
Lengthy arguments were addresseg to us by the petitioner and several interveners.
The matter, as we shall show later, lies in a narrow compass.
At the
end of the arguments we announced our conclusion that the said
provisions of the Code, properly understood, were not in excess
of the limits laid down in the Constitution, for restricting the
freedoms guaranteed by Art. 19 (l)(a)(b)(c) and (d).
We
reserved our reasons and now we proceed to give them.
We are required to test the impugned provisions against the
first four sub-clauses of the first clause of the nineteenth article.
We may accordingly begin by reading the sub-clauses :
1. 9. ( 1) All citizens shall -have the right-
( a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
· ( c) to form· associations or union;
and
(d) to move freely throughout the territory of India;
These sub-clauses deal with four distinct but loosely related
topics.
They preserve certain personal as well as group freedoms.
They allow an individual freedom of speech and move-
. ment and as a member of a group (and for the group also) the
same freedoms plus the right of assembly and formation of associations and unions.
Although the guarantet".s appear to be in
zbsolute terms, ·in reality they are not so.
A number of restric-
. tive exceptions are engrafted._ upon each of the freedom previously
guaranteed.
The restrictions are contained in els. (2), (3), (4)
and ( 5) and are related respectively to sub-els. (a), (b), ( c)
and (d) of the first clause.
Clause (5) covers sub-els. (e) and
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MAOHU LIMAYE v. SUB-DIV. MAGISTRATE (Hidayatullah, CJ. 71;
(f) of the first clause also, but tbe additional fact does not concern us.
Of these, cl. (2), as it stands today, was not eriginally in the Constitution but was substituted with retrospective
effect by s. 3 of the Constitution (First Amendment) Act 1951.
Strictly speaking there never was any clause ( 2) other than the
one we have before us today unless we were to hold that the
first Amendment was either not valid or not retrospective.
We
were invited to do so and to reconsider the decision in I. C. Golak
Nath & Ors. v. State of PunJab & Anr.(1) but we declined because its validity was not doubted at any stage in that .case.
The·
valdity of the Amendment therefore cannot now be questioned.
As a result we are not required to read the former cl. ( 2)
which never existed.
Clauses (2), (3) and (4) were furtl!er
amended by the insertion of the words "The sovereignty and integrity of India" in each of them, by s. 2 of the Constitution (Sixteenth Amendment) Act 1963. The clauses as they exist today
read:
"(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent the
State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the
right conferred by the said sub-clause in the interests
of the sovereignty and integrity of India the security of
the State,. friendly relations with foreign States, public
order, decency or morality, c:ir in relation to contempt
of court, defamation or incitement to an offence.
( 3) Nothing in sub-clause (b) of the said clause
shall affect the operation of any eJtisting law in so far
as it imposes, or prevent the State from making any
law impcsing, in the interests of the sovereignty aad
integrity of India or public order, reasonable restric-.
tions on the exercise of the right conferred by the said
sub-clause.
'
·
( 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
law imposing, in the interests of the sovereignty and
integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred
by the said sub-clause, Mid
(5) Nothing in sub-clause (d), (e) and (f) of tbe
said clause shall affect the operation of any existing law
in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the
(I) (1967) 2 S.C R. 762.
718
SUPREME COURT REPORTS
[1971 J 2 S.C.R
exercise of any of the rights conferred by the said subA
clauses either in the inte1ests of the general public or
for the protection of t~e lfl(erests of any Scheduled
Tribe."
All that is necessary to be decided by us is whether these
clauses savi<_Jbe impugned provisions of the Code as reasonable
and valid restrictions upon the guaranteed freedoms.
Before we
proceed to do so, we ;nay dispose of a very ingenious argument
by Mr. A. S. R. Chari which may be summarised thus :
'.'The original clause ( 2) had to be read on the commencement of the Constitution and it was as follows :
(2) Nothing in sub-clause (a) of clause (I) shall
affect the operation of any existing law in so far as it
relates, or prevent the State. from making any law
relating to,
libel, slander, defamation,
contempt of
court or any matter which offends against Jecency or
morality or which undermines the security of or tends
to overthrow, the State.
This clause did
not allow
restrictions to be placed in the interests of public order
on which the impugned provisions are justiiicd today.
Admittedly the.other parts of clause (2) are not relatable
to the'iinpugncd provisions and cannot save them without
the aid of power exercisable in the i1nterests of P'Jblic
order. Therefore on the coming into force of the Constitution the impugned provisions of the Code became
void, that is to say, were dead, and could 111ot cmne to
life again when the Constitution was amended.
They
had to be re-enacted".
Parties joined issue on whether the p{_ovis~ons were dead, that
is to say, were erased from the Statute Book and required re-enactment, or were merely eclipsed, that. is to say, remained ineffective
till the shadow of the original cl. (2) was lifted.
We
do
not
prepose to enter into this debate.
Assuming that the Constitutio,n could be amended with retrospective effect (a point not
free altogether from difficulty), the purpose of the amendment is
to create a fiction.
Whatever may be said of a law declared un-
<:onstitutional before the First Amendment, cannot be said of a
law which is being considered today after the First Amendment.
The fiction in the amendment is to make the Constitution
be
read with the. new clause and no other and a law restricting the
freedoms in the interests of public order ( ampng others) or in
the interests of the general public must be held to be saved, not
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MAOHU LIMAYE v. SUB-DIV. MAGISTRATE (Hidayatullah, C.J.) 719
as a result of the amendment, but because of these available restrictions operating from the inception of the Constitution. The~e-·
fore, although we consider the matter today, after much history
has been written and then unwritten by retrospective amendments
of the Constitution (assuming this to be permissible), we read
the protection of amended cl. (2) as available from January 26,
1950 without a break.
The fiction, if given full effect leads to
no otiier conclusion.
In this view of the matter we do not find
it.necessary to refer to the rulings of this Court where the doctrine
of eclipse is considered in relation to provisions of laws declared
void by Courts in the interval.
That reasoning ex facie cannot
apply to this case.
The result, therefore, is that we are only required to discuss
whether the provisions of s. 144 and Chapter VIII of the . Code
ca::i be said to lie in the interests of public order in so far as tlfe
rights of freedom of speech and expression, rights of assembly.
and fonnation of associations and unions are concerned and in
the interests of the general public in so far as they curtail the
freedom of movement throughout the territory of India.
In this connection only two topics arise fot close study. · ,
Fintly what is meant by the expressions "in the interest of pubhc
.order" occumng in els• (2), (3) and ( 4) and "in the interests of
the general public" occurring in cl.
( 5). Secondly to what
extent the provisions of s. 144 and Chapter VIII come within the
protection.
In so far as s. 144 of the Code is concerned this Court in ·
Babula/ Parate v. Stace of Maharashtra(')
had held that the
section was intra vires the Constitution but doubts were raised
because the judgment of this Court spoke in terms of 'in the
interest of maintenance of public order' or 'duty . of maintenance
of law and order' when the second clause of Art.
19 speaks of
'in the interest of public order'.
Differences between the import
of these several expressions were pointed out in several cases from
the time the earliest cases of this Court Ramesh Thappar v. State
of Madras(2 ) and Brijbhushan v. State of Delhi(') down to Dr.
Ram Manohar Lohia v. State of Bihar & Ors.(<) and some later
cases f~llowing that case. The effect of Babu/a/ Parate's(1) cas~
was claimed to be lost and it was submitted that the matter neede~ reconsi~eration.
Alt~ough the topic was once again before
this Court m State of Bthar v. K. K. Misra & Ors.(1) when the
second part of sub-s. ( 6) of the section was declared invalid the
~ecision in Babula/ Parate's( 1) case was not considered in the iight
(I) (19,51) 3 S.C.R. 423,
(2) (195L1 S.C.R. 594.
(3) (1950)
S.C.R. 605.
(4) (1966) I. S.C.R. 709.
(5) (1969) 3. s.c.c. 337.
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SUPREME COURT REPORTS
[1971 J2 S.C.R
of other cases of this Court mentioned above.
Therefore this
Special Bench was constituted to review the whole position in
relation to s. 144 and Chapter VIII of the Code.
The petitioner and the interveners began arguments by invoke
ing-the doctrine of preferred-position for the Fundamental Rights
particularly the right to freedom of speech and expression. Mr.
Garg, an intervener, squarely based himself on the American doctrine.
Mr. Chari for another intervener was indirect.
His submission is that the Courts, when faced with the question whether
any legislative or executive action is constitutional or not, must
range themselves on the side of the Fundamental Freedoms and
consider whether the restrictions are reasonable or not.
In
other words, Courts must place the burden on the State to prove
the reasonableness of the restriction.
A word may, therefore,
be said here about how the Court must proceed to examine a
challenge to the constitutional validity of laws vis-a-vis a fundamental freedom.
The preferred-position doctrine in America developed by the
Roosevelt Court through Justices Black, Douglas, Murphy, Stone
and Rutledge, envisaged that any law restricting freedom of
speech, press, religion or assembly must be taken on its face to
be invalid till it was proved to be valid.
The doctrine was perhaps the result of a remark by Justice Stone in United States v.
Caro/ena Products Co. (1). But it has most frequently
been
used by Justices Black and Douglas in recent years after the
deaths of Justices Murphy and Rutledge in 1949. Its history is
given by Justice Frankfurter in his concurring opinion in Kovacs
v. Cooper('), iin which he rejected it.
Justice Rutldege, in
Thomas v. Collins(") stated it in these words:
"This case confronts us again with the duty our
system places on this Court to say where the individual's freedom ends and the States' power begins
Choice on that border, now as always delicate, is per
haps more so wh.ire the usual presumption supporting
legislation is balanced by the preferred place given in
our scheme to the great, the indispensable freedoms
secured by
the
first
Amendment. That
priority ~ves these liberties a sanctity and a sanction not
permitting dubious intrusions. For these reasons any
attempt to restrict those liberties must be justified by
cle;ir public interest, threatened
not doubtfully or
rerl:\otely, but by clear and present danger. The rational
'~cinriection between the remedy provided and the evil
(I) (1938) 304 U.S. 144.
{2) (1949) 336 U.S. 77.
(3) (1944) 323 U.S. 516.
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~IADHU LIMA YE \', SUB-DIV. MAGISTRATE (Hidayat11//ah, C.J.) 721
to be curbed, which in other contexts inight support
legislation against attack on due proceos grounds, will
not suffice.
These. rights rest on finner foundation".
The result of the doctrine was to shift the burden of proof
on !he shoulders of those defending the legislation, without raising
in their favour the presumption of the validity of legislation.
It.
llowever, has been abandoned by the majority of Judges. after
1949 when Justices Clark and Minton replaced Justices Murphy
;md Rutledge. Justice Fra,nkfurter in the Kornc's case( 1) described
it as 'a complicated process of constitutional adjudication by a
deceptive fonnula'.
It is suflkient to say that the
preferredposition doctrine has not the support of the Supreme Court of the
United States and the unreasonableness of the Jaw has
to be
established.
In this Court the preferred-position doctrine has never found
ground although vague expressions such as 'the most
cherished
rights', 'the inviol:tble freedoms' sometimes occur.
But this is
not to say that any one Fundamental Right is superior to. the other
or that Art. 19 contains a hierarchy.
Pre-constitution laws are
not to be regarded as unconstitutional.
We do not start with the
presumption that, being a pre-constitution law, the burden
is
upon 1he State to establish its validity.
All existing laws
are
continued till this Court declares them to be in conflict with a
fundan'\ental right and, therefore, void.
The burden· muilt be
placed on those who contend that a particular law has become
void after the coming into force of the Constitution by reason of
Art. 13 (I) read with any of the guaranteed freedom~.
The present doubt has arisen with regard to Babu/al Pat'flte's
case('), as stated earlier, by not adhering to the phraseology of
Art. 19 ( 2) where the words 'In the interest of public order'
appear. It is these words which need an exposition and not the
expression, in the interest of maintenance.of law and order', which
are not the words of the article.
To expound the meaning of the
right expressions we are required to go over some earlier decisions of this Court.
Whein Ramesh Thappar v. State of Madras( 8 ) and Brijbl111shan
v. State of Delhi(') were decided, the original clause (2) was there.
It did not include the phrase 'in the interest of public order·. The
validity of statutes· was, therefore, tested against the words 'the
security of the State'.
After the retrospective amendment substituted a new clause, the matter fell to be considered in relation
to 'public order'. In Ramfilal Modi v. State uf Uttar Pradesh(G)
it was pointed out that the language employed by the Constitu-
(I) (1949) 336 U.S. 77.
(3) (150) S.C.R. 594.
(2) (1961) 3 S.C.R. 423.
(4) (1950) S.CR. 605.
(3) [1957) SC R, 860.
4-694 S•1p. CI/71
722
SUPREME COURT REPORTS
(1971] 2 S.C.R
tion, that is to say, 'in the interest or was wider than the expression 'for the maintenance of' and the former expression made the
ambit of the protection very wide.
It was observed that 'a law
may not h_ave beell designed to directly maintain public order
and yet it may have been enacted in the interest of public order'.
This was again reaffirmed in Virendra v. State of Punjab(!) distinguishing o.n the same ground the two cases before the First
Amendment. The following passage (p. 323) l!lay be quoted :
Hit will be remembered that Art. 19(2), as it was
then worded, gave protection to a law relating to any
matter which undermined the security of or tended to
overthrow the State.
Section 9 (1-A) of the Madras
Maintenance ·of Public Order was made 'for the purpose of securing public safety and the maintenance of
public order'.
It was poiinted out that whatever end
the impugned Act might have been intended to subsel"Ve and whatever aim its framers might have had in
view, its application and scope could not, in the absence
of limiting words in the statute itself. be restricted to
the aggravated form of activities which were calculated
to endanger the security of the State.
Nor was there
any guarantee that those officers who exercised the
power under the Act, would, in using them, discriminate between those who acted prejudicially to
the
security of the State and those who did not.
This
consideration cannot apply to the case now under consideration. Article 19 (2) has been amended so as to
extend its protection to a law imposing reasonable restrictions in the interests of public order and the language
used in the two sections of the impugned Act quite
clearly and explicitly limits the exercise of the powers
· conferred by them to the purposes specifically mentioned in th~ sections and to no other purpose"
We may say at once that the distinction has our respectful concurrence.
Then came the decision in Superintendent, Central Priso"I,
Fatehgarh v. Ram Manohar Lohia(2).
In that case, the expression
'in the interest of public order' fell to be considered. Subbarao, J.
(as he then was) traced the exposition of the phrase, particularly
the ·expression 'public order'. He referred first to the observations
ot Patanjali Sastri, J. (later C.J.) iin Rimesh Thappar's case(')
(supra) distinguishing offences involving disturbances of public
tranquillity which the learned Judge said were in theory offences
against public order of a purely local significance and other forms
(I) [1958] S.C.R. 308.
(12) (1960) 2 S.C.R. 821.
(3) (1950) S.C.R. 594.
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MADHU LIMAYE V. SUB-DIV. MAGISTRATE (Hidayatu/lah, C./.)723
of public disorders of more serious and aggravated kind calculated to endan~er the security. of ~e State. Subbarao, J. also quoted
the observation of Faz! Ah, I. Jill Brii Bhushan's case(1) :
"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 pelCe 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 jeopardises the
security of the State" (p. 612).
Subbarao, J. on the strength of these observatinns concluded that
'public order' \vas the same as 'public peace and safety' and went
on to observe :
"'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 mu:\er .cl. ( 2) of Art. 19".
He quoted the observations of the Supreme Court of the United
States in Cantwell v. Connectlcut( 1) to establish that ofences
against 'public order' were also. understood as offences against
public safety and public peace. He referred to a passage in a
text-book on the American Constitution which states :
'In the interests of public order the State may
. prohibit and punish the causing of 'loud and raucous
noise' in streets and public places by means of sound
amplifyi~ instruments, regulate the hours and place of
public diseilssion,
lllll.d the use oi 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,
annoy11111ce or unrest'."
He referred also to the Public Order Act 1936 il1 England.
Subbarao, J. however, distinguished the American and English>
precedents observing :
"But in India under Art. 19(2) this wide concept
of 'Public order' is split up under different heads.
It
(1) [l 950] S.C.R. 605.
(2) (1940)310 U.S. 296.
724
SUPREME COURT REPORTS
[1971] 2 S.C.R
enables the impcsition of reasQD:abJe restrictions on the
exercise of the ·right to freedom of spee~h and exp~ession
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 somethiilg which is demarcated from the others.
In that limited sense, particularly in view of the history
of the amendment, it can be postulated that
'public
order' is synonymous with public peace, safety and
tranquillity".
His summary of his an:ilysis of cases may be given in his own
\VOfds :
"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".
We may here observe that the overlap of public order and
public tranquillity 1s only partial. The terms are not always
synonymous.
The latter is a much wider expression and takes in
many things which cannot be described as public disorder.
The
words 'public order' and 'public tranquillity overlap to a certain
· extent but there are matters which disturb public
tranquillity
without being a disturbance of public order.
A person playing
loud music in his own house in the middle of the night may disturb public tranquillity, but he is not causing public disorder.
··Public order' no doubt also requires absence of disturbance of a
state of serenity in society but it goes further.
It means, what
the Frerich designate ordre publlque, defined as an absence of
'in.surrection, riot, turbulence, or crimes of violence.
The expression 'public order' includes absence of l!ll acts which are a
danger to the security of the state and also acts which .are comprehended.