# KAMESHWAR PRASAD AND OTHERS v. THE STATE OF BIHAR AND ANOTHER

- **Citation:** [1962] Supp. 3 S.C.R. 369
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** P. B. Ga.Jendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kameshwar-prasad-and-others-v-the-state-of-bihar-and-another-2385
- **Pages:** 17

## Headnote

Government Servant-Participation in strike.9 or demonstra•
tions-Rule prohibiting strikes or demonstrations pertaining
to conditions of
service-Oondtutional validity of rule-
"Detnonstration". meaning of-Bihar Governm,ent
Servants'
Conduct
Rules,
1956,
r.
4-A-Constitution of India,
Art•. 19(1)(a), 19(1)(b), J.9(1) (c), 33, 309.
By a notification dated August 16, 1957, the Government
of
Bihar introduced r. 4-A into the Bihar Gevernment
Servani:s' Conduct Rules, ! 956, which provided "No Government servant shall partjcipate in any demonstration or resort
to any form of strike in connection with any matter pertaining
to his conditions of service." The appellants filed a petition
before the High Court of Patna under Art. 226 of the Constitution of India challenging the ,validity of the rule on the
grounds, inter alia, that it violated sub-els. (a), (b) and (c) of
Art. 19 and that, in coniequence, the rule was in excess of the
rule making power conferred by Art. 309.
The High Court
took the view that the freedom guaranteed under Arts. 19 (1)
(a' and 19 (1) (c) did not include a right to demonstrate or to
strike so far as servants of Government were concerned, 3.nd
that in any case, the impugned rule was saved as impo3ing
reasonable restrictions.
He.ld, that r. 4·A of the Bihar Government Servants'
Conduct Rules, 1956, in so far as it prohibited any form of
dernostration, be it however innocent or however incapable of
causing a breach of public tranquillity, was vioiative of Arts.
19 (1) (a) and 19(l)(b) of the Constitution of India, and since
on t~1e language of the rule as it stood it was not possible to so
read it as to separate the legal from the unconstitutional portion of the provision, the entire rule relating to participation in
any demonstration must he declared as ultre vlrcs.
T/1e Superintendant, Central Pri8on, Fetehgarh v. Ram
Marw/iar Lohia, [1960] 2 S. C.R. 821, relie~ on.
The Constitution has under Art. 33, selected two of the
Services uncier the State, the ~trnbers ~f WJiich might b~
196!
February 22.
Karruthwar fraxad
••
~
Staft Qj Bfl1ar
370 SUPREME COURT REPORTS (1962] SUPP.
deprived of the benefit of the fundamental rights guaranteed
to other persons and citizens and also has prescribed the limit~
within which such rcscrictions or abrogation might take place;
but the ocher clau'iscs of servants of Govcrn1nent in co1nmon
with other persons and citizens of the country cannot be exclu·
<led from the protection of the rights guaranteed by part JI I
by reason 1nerely of their being Govern1nent scr\'ants, though
on account of nature and incidents of the duties \vhich they
have to discharge in that capacity, certain restrictions on their
freedoms rnight have to be imposed.
Heid, further, that the rule in so far as it prohibited
strikes v.•as valid, because there was no fundamental right t0
resort to a strike.
All India Rllnk /~1npl1Jyers' Asaocir1tion v. _,
1ationrzl Indus·
trial Tribunal, (1962] 3 S.C.R. 269, followed.
Civil Az>pellate .l'llrisdfrtion: Civil Appeal Xo.
41.l of 1959.
Appeal from the judgment and decree dated
,July 7, 19.~8, of the Patn:t High Court in
~I. ,J.C.
~o. 456 of 1957.
B. P. Jfoheshwari, for the appellants.
S. P. Va;-ma, for the rcspowlrnts.
B. Sen and R.H. Dhchar, for the Intervener
No. l (Cnion of India).
A. S. R. Chari, M. K. Rammni1rthi, R. K. Garg,
]). P. Singh and S. C. Agarwal, for the Inwn·ener
No 2 (E. X. Joseph).
1962. February 22.
The Judgment of the
Court was delivered by
AYYA:XGAR, J.-This appeal comes beforo. us
by virtue of a certificate of fitness grnntNI under
Art. 132 of the Constitution by the High Court of
Patna. The question involve<! in the app<•al is a
8hort ono but is of considerable puhlic importance
and of great constitutional significance.
ft.
i~ con·
cerned with the constitutional validity of r. 4·A,
•
l
•
-
3S.C.R.
SUPREME COURT REPORTS
371
which was introduced into the Bihar Government
Servants' Conduct Rules, 1956; by a notification
of the Governor of Bihar date

## Text

3 S.C.R.
SUPREME COURT REPORTS
369
KAMESHWAR PRASAD AND OTHERS
v.
THE STATE OF BIHAR AND ANOTHER
(P. B. GA.JENDRAGADKAR, A. K. SARKAR, K. N.
WANCHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, .JJ.)
Government Servant-Participation in strike.9 or demonstra•
tions-Rule prohibiting strikes or demonstrations pertaining
to conditions of
service-Oondtutional validity of rule-
"Detnonstration". meaning of-Bihar Governm,ent
Servants'
Conduct
Rules,
1956,
r.
4-A-Constitution of India,
Art•. 19(1)(a), 19(1)(b), J.9(1) (c), 33, 309.
By a notification dated August 16, 1957, the Government
of
Bihar introduced r. 4-A into the Bihar Gevernment
Servani:s' Conduct Rules, ! 956, which provided "No Government servant shall partjcipate in any demonstration or resort
to any form of strike in connection with any matter pertaining
to his conditions of service." The appellants filed a petition
before the High Court of Patna under Art. 226 of the Constitution of India challenging the ,validity of the rule on the
grounds, inter alia, that it violated sub-els. (a), (b) and (c) of
Art. 19 and that, in coniequence, the rule was in excess of the
rule making power conferred by Art. 309.
The High Court
took the view that the freedom guaranteed under Arts. 19 (1)
(a' and 19 (1) (c) did not include a right to demonstrate or to
strike so far as servants of Government were concerned, 3.nd
that in any case, the impugned rule was saved as impo3ing
reasonable restrictions.
He.ld, that r. 4·A of the Bihar Government Servants'
Conduct Rules, 1956, in so far as it prohibited any form of
dernostration, be it however innocent or however incapable of
causing a breach of public tranquillity, was vioiative of Arts.
19 (1) (a) and 19(l)(b) of the Constitution of India, and since
on t~1e language of the rule as it stood it was not possible to so
read it as to separate the legal from the unconstitutional portion of the provision, the entire rule relating to participation in
any demonstration must he declared as ultre vlrcs.
T/1e Superintendant, Central Pri8on, Fetehgarh v. Ram
Marw/iar Lohia, [1960] 2 S. C.R. 821, relie~ on.
The Constitution has under Art. 33, selected two of the
Services uncier the State, the ~trnbers ~f WJiich might b~
196!
February 22.
Karruthwar fraxad
••
~
Staft Qj Bfl1ar
370 SUPREME COURT REPORTS (1962] SUPP.
deprived of the benefit of the fundamental rights guaranteed
to other persons and citizens and also has prescribed the limit~
within which such rcscrictions or abrogation might take place;
but the ocher clau'iscs of servants of Govcrn1nent in co1nmon
with other persons and citizens of the country cannot be exclu·
<led from the protection of the rights guaranteed by part JI I
by reason 1nerely of their being Govern1nent scr\'ants, though
on account of nature and incidents of the duties \vhich they
have to discharge in that capacity, certain restrictions on their
freedoms rnight have to be imposed.
Heid, further, that the rule in so far as it prohibited
strikes v.•as valid, because there was no fundamental right t0
resort to a strike.
All India Rllnk /~1npl1Jyers' Asaocir1tion v. _,
1ationrzl Indus·
trial Tribunal, (1962] 3 S.C.R. 269, followed.
Civil Az>pellate .l'llrisdfrtion: Civil Appeal Xo.
41.l of 1959.
Appeal from the judgment and decree dated
,July 7, 19.~8, of the Patn:t High Court in
~I. ,J.C.
~o. 456 of 1957.
B. P. Jfoheshwari, for the appellants.
S. P. Va;-ma, for the rcspowlrnts.
B. Sen and R.H. Dhchar, for the Intervener
No. l (Cnion of India).
A. S. R. Chari, M. K. Rammni1rthi, R. K. Garg,
]). P. Singh and S. C. Agarwal, for the Inwn·ener
No 2 (E. X. Joseph).
1962. February 22.
The Judgment of the
Court was delivered by
AYYA:XGAR, J.-This appeal comes beforo. us
by virtue of a certificate of fitness grnntNI under
Art. 132 of the Constitution by the High Court of
Patna. The question involve<! in the app<•al is a
8hort ono but is of considerable puhlic importance
and of great constitutional significance.
ft.
i~ con·
cerned with the constitutional validity of r. 4·A,
•
l
•
-
3S.C.R.
SUPREME COURT REPORTS
371
which was introduced into the Bihar Government
Servants' Conduct Rules, 1956; by a notification
of the Governor of Bihar dated August 16, 1957
and reads:
"4~A.-Demonstrations and strikes.-
No Government servant shall participate
in any demonstration or resort to any form of
strike in connection with any matter pertaining to his conditions of service."
·
Very soon after this rule was notified the six
appellants, the first of whom is the President of the
Patna Secretariat Ministerial Officers' Association
and the others are Assistants or Clerks under the
Bihar State Government, filed on August 26, 1957,
a petition before the High Court of Patn'l under
Art. 226 of the Constitution challenging the validity
of the rule on various grounds including inter alia
that it interfered with the rights guaranteed to the
petitioners by sub-els. (a), (bl and (c) of cl. (l) of
Art. 19 of the Constitution of India and that in
consequence the rule was in excess of the rulemaking power conferred by Art. 30:J of the Constitution which "·as the source of the authority enabling service-rules to be framed. They prayed for an
order restraining the respondent-State from giving
effect to the rule and to desist from interfering with
the petitioners' right to go on strike or to hold
demonstrations. The learned Judges of the High
Court who heard the petition were of the opinion
that the freedom guaranteed under Art. 19( l)(a) and
19(l)(cl of the Constitution did not include a right
to resort to a strike or the right to demonstnte so
far as sevants of Government were concerned. ·The
learned Judges however,
further considered the
validity of the rule on the assumption that the
freedoms enumerated in sub-els. (a) and (c) of Art.
19(1) did include those rights. On this basis they
held that the rule impugned was saved as being
reason~ble restraints on these guaranteed freedoms,
1962
Kamechwar Prasad
v.
The Slate of Bihar
A ;:yan:ar J,
1962
ltameJhrt;Qr P,au1d
v.
The Stale of Bihar
A}yan111f' J.
372 SUPREME COURT REPORTS [1962) SUPP.
The learn°d Judges therefore directed the petition
to Le di~missed, but on application by the a ppell:ints
thoy granted 11 certificate und<'r Art. 132 of the
Constitution to enable them to approach tliis Court.
At this stage it is necessary to mention that a
similar conclusion as the one by the High Court of
Patna· now under appeal wa.s reached by the learned
Judges of tho High Court of Romhay before whom
the constitutional validitv of a rn le in identical
terms as r. 4A of the Bihar Rul<'s was impugned.
The correctneRS of th:it decision is unrfor chnll<'nge
in this Court in S.L Ps. (Civil) Nos. 40\J »nd 500 of
19til and the appellants in that app1·al sought leave
to intervene in this appeal and we ha,_.,, permitted
them t-0 do RO, and we heard '.\Ir. Chari-learned
Crmnoel for the int~rveners in furl her ~upport of
the appeal.
Before entering on a di~cussion of tho a,rguments adv:mced before us it might be eonvenient
to state certain matter~ which are common ground
and not in controversy :
(I) The impui,,'lled rule 4-A was framed under
Art. 309 of tho Con8titution which enact~. to quote
the material words :
"300. Subied to tho provision" of this
Constitution, Acts of the appropri11te Legislature may regulate the rceruit1rn·nt, and conditions of service of persons appointed, to public
.
,,
scrvtC(\,S .. .•.....•.....
ancl provision i~ made hy tho proviRo to thi> Article
for tlw Governorn of States to make JU!t's until
"provision in that ~chalf i~ macle .!':V or unrfor .an
Act of the appropriate Leg1slalur<, . We are <lrnwmg
att~ntion to the Artidc under which th(' rnlo is
mad(' for the purposP of pointing out that the rulemaking power being snhj.,ct to the Cntrntit.utio1;,
the validit.y of the rulo would have to b" tested
by the saml' criteria as aro applicable to all !:1~s
and subordinate legislation.
In other wor<ls, 1f
•
.•
'
•
3 S.C.R.
SUPREME COURT REPORTS
373
there are any constitutional limitations npon lawmaking, such of them as are appropriate to the
subject dealt with by the rule would be applicable
to them.
(2) It would be seen that the rule prohibits
two types of activities, both in connection with
matters pertaining to the conditions of service (i) the
holding of demonstrations, and (ii) resort to strikes
to achieve the purpose indicated. This Court had,
in All India Banlc Emplnyees' Association v. National
Industrial Tribunal (')
(Bank disputes Bombay
etc.), to consider the question as to whether the
right to form an association guaranteed by Art.
19( l) (c) involved or implied the right to resort to
a strike a,nd answered it in the negative. In view
of this decision learned Counsel for the appellants,
as also Mr. Chari for the interveners confined their
arguments to the question of the legality of the
provision as regards the right "to hold demonstrations". The validity of the rule therefore in so
far as it prohibits strikes, is no longer under
challenge.
The argument addressed to us on bl'half of the
appellants may be shortly stated thus : The eervicerule being one framed under Art. 309 is a "law"
within the definitiun of Art. 13(3) of the Constitution and it would have to be pronounced invalid
to the extent that it is inconsistent with the provisions of Part III. of the Constitution Art. 13(2).
Article 19(1) confers on all citizens the right by
sub-cl. (a) to freedom of speech and expression, and
by sub-cl. (b) to assemble peacefully and without
arms, and the rightto"demonstrate"would be covered
by these two sub-clauses. By the ,mere fact that a
person enters Government service, he does not
cease to be "a citizen of India", nor does that
disentitle him to claim the freedoms guaranteed
to every citizen. In fact, Art. 33 which enacts :
"Parliament may by law determine to
(I) CJ.A; 154 of 1961 (Not yet reported).
1962
Kameshwar Prasad
v.
The State of B1'har
Ayyanzar J.
JYG2
Kam11hw.rr l'rasad
••
The Sl•U of Bihar
. .i/~·a :;ar J.
374 SOPREME COURT REPORTS (1962] SuP~.
wh11t extent any of the rights conferred by
this Part shall, in their application to the
members of the Armed Forces or tho Forces
charged with maintenance of public order, be
restricted or abrogated so as to ensure the
proper discharge of their duties and the maintenance of discipline among them.,.
obviously procC'eds on the basis of personH in the
service of Government being entitled to the Protection of tho fundamental rights guaranteed by Part
III of the Constitution and iB inserted to <·nable
special provi;ion being made fur the abrogation, if
necessary, of thn guarant-0ed freedoms in the ease
of two special scrd<;cs only, viz., the army :u:d the
police force.
The approach to the queRt.i<in regarding the constitutionality of the rule should be
whether the ban that it imposes on demonstrations
would be covered by the limitation of the guaranteed rights contained in Art. 19(2) and 19(::!).
In
regard to both these clauses the only relevant
criteria which has been suggested by the respondent-State iH that the rule is framed •·in the interest
of public order".
A demonstration may be defined
as "an expres8ion of one's feelings by outward
signs". A demonstration such as is prohibited by,
the rule may be of the most innocent type- peaceful
orderly such as the mere wearing of a badge by a.
Government servant or even by a silent afSem bly say
outside oflice hours-demonstrations which could
in no sense be suggested to involve any breach of
tranquillity, or of a type involving incitement to or
capable of lea.ding to disorder. If the rule had
confined itself to demonstrations of type which
would lead to disorder then the validity of that rule
could havo been sustained but what the rule does is
the imposition of a blanket-ban on all demonstrations of whatever type-innocent ae well as otherwise-and in consequence its validity cannot be
upheld.
Before considering these arguments of learned
-
-
3 s.c.R.
SUPREME COURT REPORTS
375
Counsel it is necessary to deal with the submission
by Mr. Sen who appeared for the Union of India
who intervened in this appeal which, if accepted,
would cut at the· root of the entire argument for
the appellant. He endeavoured to persuade us to
hold that though the power to frame Service Rules
under Art. 309 was subject to the Constitution with
the result that the rules so framed ought not to be
contrary to any constitutional provision, still it did
not follow that every one of the fundamental rights
guaranteed by Part III could be claimed by a
Government servant. He urged that as a person
voluntarily entered Government service he must by
that verj act be demeed to have consented to errter
that service on such reasonable conditions as might
be framed ·for ensuring the proper working of the
administrative machinery of the Government and
for the proper maintenance of discipline in the
Service itself.
Under Art. 310 every office is held,
subject to the provisions of the Constitution, at the
pleasure of the President or of the Governor as the
case may be, and provided a rule regulating the
conditions of service was reasonable and was calculated to ensure the purposes above-named he submitted that its reasonableness and validity could
not be tested solely by reference to the criteria laid
down in ols.(2}, (3) or (4) of Art. 19.
In this connection we were referred to a few
decisions of the American Courts· for the proposition that the constitutionality of special rules enacted for the discipline of those in the service of Government had to be tested by criteria different from those
applicable to ordinary citzens.
Thus in 'f!Jx Parle;
Curtis (') the constitutionality of a law prohibiting
officers or employees of the United S~ates from
"requesting, giving to or receiving from any other
officer or employee of the government any money
. or property or other thing of value for political
purposes," under a penalty of being discharged and,
on conviction fined, was upheld. In the majority
(I) 27 Law. Ed. 232, 106 U. S. 371.
196B
Kameshwar Prastld
v.
Tiu S t•I• of Bihar
Ayyangar J.
1962
KouuslrUJar PrOJ•i
v.
Tht Stak of Bilw
Auyongar J•
376 SUPREME COURT REPORTS f l!l62] SUPP.
judgment which was delivered by Waite, C.J., the
rcasonablen('ss of such a rule is pointed out. It is
however manifest that no fundamrntal right could
be claimed to havP been infringed by the provision
there impugned. In United l'ublic Worker" v.
Mitdull ('), which was another caso to which our
attention was invited, ono of the questiuns raised
related to the validity of an Act of Congress (The
Hatch Act, 1940) making it unlawful for the employees in the Executive Branch of the .Federal
Government to take part in political campaigns 11.nd
making the same the basis for disciplinary departmental action.
It was eontended that thi" wa8 an
interference with the right of free speech as well as
with political rights.
l\eed, J., who spoke for the
majority obHerved:
"Tho interference with free cxpreSBion
has to be seen in comparison with the requireml'nts of orderly management of administrative personnel. ....... _.,,We accept appellant's
contention that the nature of political rights
reserved to the people are involved. The
righ~ claimed as inviolate may be stated as
the right.of a citizen to aot as a party official
or worker to further his own political views.
Thus we h11.ve a measure of interference by
the Hatch Act and the Rules with what otherwise would be the freedom of the civil servant
under the .First Amendment. And, if we look
upon due process as a guarantee of freedom in
those fields, there is a corresponding impairment of that right under the Fifth Amendment .......... ,_ .... We do not find persuation in
appellants' argument that such activities
during free time are not subject to regulation
even
though admittedly politieal activitos
cannot be indulged in during working hours.
The influence of politieal activity by gc,vernrnent employees, if evil in its effects on tho
(I) 91 Law. Ed. 75·1, 330 t..:.S. 75.
-
'
3S.C.R.
SUPREME COURT REPORTS
'
.. "
377
service, the employees or people dealing with
them, is hardly less so because that activity
takes place after hours ............ It is accepted
constitutional doctrine that these fundamental
human rights are not absolutes ............ The
essential rights of the First Amendment are
subject to the elemental need for O!der with·
out which the guarantees of civil rights to
others· would be a mockery".
Mr. Sen also referred us to Mc Auliffe v. New
Bedford ( ') which is cited at p.791 in 91 Law. Ed.
in support of the position that servants of Government formed a class and that conditions of service
imposed upon them which are reasonable and
necessmy to ensure efficiency and discipline cannot
be questioned on the ground of their contravening
any constitutional guarantees. Mr. Sen drew our
attention in particular to the following passage in
the judgment of-Holmes, J. :
"There is nothing in the Constitution or
the statute to prevent the city from attaching
obedience to this rule as a condition to the
office of policeman, and making it part of the
good conduct required.
The petitioner may
have a constitutional right to talk polities,
but he has no constitutional right to be a
policeman. There are few employments for
hire in which the servant does not agree to
suspend his constitutional right of free speech,
as well as of idleness, by the implied terms of
his contract. The servant c1mnot complain,
as he takes the employment on the terms
which are offered him. On the same principle,
the city may impose any reasonable condition
upon holding offices within its control. This
· condition seems to us reasonable, if that be a
question open to revision here (The Police
Regulation prohibiting mem hers of the depart-
( I) (1892) 155 Mass. 216.
1962
Kameshwar Prasad
v.
The State of Blha•
Ayyanzar J.
1961
KtJmtshwar Pr"•ad
..
Thi Stu1 of Billi"
.. ,_,.,,,., J
:ns SUPREME COURT REPORTS (1962] SUPP.
ment from soliciting money etc. for political
purposes)" .
As regards t hesc decisions of t.he American
Courts, it should be borne in mind that though the
First Amendment to the Constitution of the United
State reading "Congress shall make no law .........
abridging the freedom of speech ......... " appears to
confer no power on the Congress to impose any
l'<'Striction on the exercise of the guaranteed right,
~till it has always been u11derstood that the freedom guaranteed is subject to the police power-the
scop:• of which however has not been ddined with
precision or uniformly.
It is on the basis of the
police power to abridge that freedom that the cu118titutional validity of law~ penalising libels, and those
relating to sedition, or to obscene publicatio11s etc.,
has been sustained. The resultant flexibilit.y of the
restrictions that could be validly jmposPd renders
the American deci;.io11s inapplicable to and without
mnst use for resolving the que~tions arising under
Art. 19('l)(a) or (b) of onr Constitntion wherein the
ground-; on which limitations might be placed on
the guaranteed right are set out with definiteness
and precision.
Learned Counsel iavited our attention also to
the decision of this Court in BrJ/11.kotaiah v. Union
of India(') to a Rimilar effect.
But it must however, be noted that in Balakotaiah's
case the
validity of the rule wa.s not challenged.
In further support of his submis8ion that the
fre•cdoms guaranteed to citizens by Art. J 9 c:annot
in their very nature, be applied to those who are
employed in governmt-nt St>rvicc our attention was
invited to sub-els. (d), (c) and (g) of d. (1). It was
said tha.t a Government servant who wa.8 post~d to
a partieular place could obviously not cxercisP tho
freedom to move throughout the t·;rritory of India
and similarly, his right to reside and settle in any
part of India could be said t.o be violated by his
(I) {1958] S. C. R.I05i.
3 S.C.R.
SUPREME COURT REPORTS
379
being posted to any particular place. Similarly,
so long as he was in government service he would
not be entitled to practise any profession or trade
and it was therefore urged that to hold that these
freedoms guaranteed under Art.. 19 were applicable
to government servants would render public service
or administration impossible. This line of argument, however, does not take into account the
· limitations which might be imposed on the exercise
of these rights by els. (5) and (6) under which restrictions on the exercise of the rights conferred
by sub-els. (d) and (g) may be imposed if reasonable
in the interest of the general public.
In this connection he laid stress on the fact
that special provision had been made in regard to
Service under the State in some of th\) Artic]es·in
Part III-such as for instance Arts. 15, 16 and
18(3) and (4)-and he desired us therefrom to
draw tho inference that the other Articles in which
there was no specific reference to Government
servants were inapplicable to them. He realised
however, that the implication arising from Art. 33
would run counter to this line of argument but as
regards this Article his submission was that it was
concerned solely to save Army Regulations . which
permitted detention in
a manner which would
not be countenanced by Art. 22 of the Constitution.
We find ourselves unable to accept the argument
that the Constitution excludes ·Government servants as a class from the protection of the several
rights guaranteed by the several Articles in Part
III save in those cases where such persons were
specifically named.
In our opinion, this argument even if otherwise possible, has to be replll!ed in view of the
terms of Art. 33. That Article selects two of the
Services under the State-members oflthe armed
forces charged with the maintenance of public order
and saves the rules prescribing the conditions of
service in regard to them-from invalidity on the
. ground of violation of a.ny of the funda.menta.l
196%
Kameshwar Prasai
v.
The State of Bihar
Ayyangar J,
J96Z
E011Ushwar Prasad
v.
Tiu Stat1 of Bihar
AJ;·angar J.
380 SUPREME COURT REPORTs [1962) SUPP.
rights guaranteed by Part III and also d<>fines the
purpose for which ~uch abrogation or restriction
might take place, this being limited to ensure the
prop!Jr di~charge of duties and the maintenanco of
discipline among th('m.
The Article having thus
selected the Services mem hers of which might Le
deprived of the bcndlt of the fundamental rights
guaranteed to other persons and citizens and also
having prescribed tho
limits within which such
rPStrictions or abrogation might take r)ace, we
congider that other classes of 5ervants o Govern·
mcnt in common with other persons and other citizens of t.hc eountry cannot Le excluded from the
protection of the rights guaranteed by Part HI by
reason merely of their br.ing Government servants
artd the nature and inri<lenta of th\) dnties which
they have to diecharge in that capacity might nccessarilv involve restrictions of certain freedoms a8
we have pointed out in relation to Art. 19 ( l) (c J
and (g ).
The first question that falls to be considered
is whether tho right to mako a "demonstration"
is covered by e·1thcr or both of the two freedoms
guaranteed by Art. l!J(l)(a) and 19(l)(b). A "elem·
onstratio11" is dcfinrd in tl1e Concise Oxford Dictil1·
nary as "an outward exhibition of feeling, as an
exhibitio11 of opinion on political or other question
especially a public meeting or procession". In
Webster it is defined as "a public exhibition by a
party, sect or society......... as by a parade or
mass-meeting". Without going very much into
the niceties of language it might be broadly stated
that a d1•monstration is a visible mauifcstation of
the feelings or sentiments of an individual or a
group. It is thus a. communication of one"s ideas
to others to whom it is intended to be conH•ycd.
It is in effeot therefore a form of Hpecch or of
expressiotl, because speech need not be vocal since
signs made by a dumb person would also be a form
of speech. It ha.a however to be recognised that
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3 S.C.R. SUPREME COURT REPORTS
381
the argument before us is confined to the rule prohibiting demonstration which is a form of speech
and expression or of a mnre assembly and speeches
· therein and not other forms of demonstration
which do not fall within the content of Art. l.9(l)(a)
or 19(l)(b). A demonstration might take the form
of an assembly and even then the intention is to
convey to the person or authority to whom the
communication is intended the feelings of the group
which assembles. It necessarily follows that there
are forms of demonstration which would fall within
the freedbms gu'1rante<Jd by Art. 19( 1 )(a) and· 19( l)
(b). It is needless to add that from the very
nature of things a demonstration may take various
forms; It may be noisy and disorderly, for instance
stone-throwing by a crowd may be cit-,d as. an
example of a violent and disorderly demonstration
and this would not obviously be within Art.
19(l)(a) or (b). It can equally be peaceful and
orderly such ·as happens when the members of the
group merely wear some badge drawing attention
to their grievances.
If thus particular forms of demonstration
fall within the scope of Art. 19(l)(a) or 19(l)(b),
the next question is whether r. 4-A, in so far as
it lays an embargo on any form of demonstration for
the redress of the grievances of Government employees, could be sustained as falling within the
scope of Art. 19(2) and (3).
These clauses run:
"19. (2) Nothing in sub-clause (a) of
clause ( 1) shall affect the operation of any
existing law, or prevent the State from making any fa w, 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
relatfons with foreign States, public order,
decency
or morality,
or in relation
to
'
'
'
196B
Kameahwar Prasad
v.
Tiu Stat11 of Bihar
Ayyangar J.
1962
K amts!ztcar Prasud
v.
Tht Stal< of Billa•
Ayyongar J,
38~ SUPRE:\iE COCRT REPORTS [1962] SUPP.
contempt of court., <lcfamatio11 or incitement to
an offence.
(.'l) ~othing in sub·clause (h) of the said
clause shall affi>et the opemtion of any exis-
~ing law in so far as it imposes, or prevent
the State from making any law imposing,
in the interests of public order, reasonabfo
restrictions on the cxerciso of tho right conferred by the said sub·clause."
The learned Judges of the High Court have, as
stated earlier, ·upheld the validity of the rule hv
considering them as roasonable rPstrictiohs in t.h·e
interest of public order.
Tn coming tot.his co1wl11sion the learned Judges
of the High Court
did not have the benefit of the exposition
of the meaning of the expression "in the int Nest
of public order" in these two clauses by thiR Court
in
Snperi111e11dent, Central Prison,
Jiutthyarh v.
Ram }rfanolwr Lohio (').
Speaking for the Court
Subba Rao, ,J., summarised his co11cluHion on tlrn
point in these terms:
"Public order (Art. 19(2) and (!l)) is syno.
nymous with public safety and tranquillity.
It is tho absence of disorder involving breaches of local significance in contradistinctfon
to national upheavals such as revolution,
civil strike, war affecting the security of the
Stat1""
The learned Judge further stated that in order that
a legislation may be "in the interests of public
order" there must he a proximate and reasonable
nexus bP.twe!'n the nature of the speech prohibited
and public ordAr. The learned .T urlge reject<'d tho
argument that the phra~n "in the interests of public
order" which is wider than the words "for the
maintenance of public or1ler" which were found in
th<> Article a• originally cnai·ted-thNeby sanctioned
the enactment of ii law which reHtricted the right
merely because the Hpcech had a tendency however
(I) [19'l0) 2 S.C.R. 82J.
-
l
-
'
3 S.C.R.
SUPREME COURT REPORTS
383
remote to disturb 'public order. The connection has
to be intimate, real and rational.
The validity of
the rule now impugned has to 1le judged with
reference to tests here propounded.
If one had to consider the propriety of the
rule as one int.ended to. ensure proper discipline
a part from the limitations on law :making, in a
Government servaut and in the context of the other
provisions made for the making ofrepresentations and
. for the redress of services, grievances, and apart from
the limitiations imposed by the Constitution there
could be very little doubt nor would it be even open
to argument that the rule now impugned was Loth
reasonable and calculated to ensure discipline in the·
Services and in that sense conducive to ensure efficiency in the Service. Based on this aspect of the
function of the rule the argument as regards Art.19(2)
& (3) was put on a twofold basis: (1) that the maintenance of public order was directly dependent
upon the existence of a body of Government servants who were themselves subject to strict discipline. In other words, the maintenance of discipline among Government servants not only contributed to the maintenance ofpublic order but· was
a sine qua Mn of public order. (2) The other aspect
in which it was presented was the negative of the
one just now mentioned that if Government servants were ill-disciplined and were themselves to
agitate in a disorderly manner for the redress of
their service grievances, this must lead to a demoralisation of the public and would be reflected in
the disappearance of public order ..
We find ourselves unable to uphold this sub·
mission on behalf uf t.he State. In the first place
we are not here concerned with any rule for ensuring disciplin~ among the police, which is the arm of
the law primarily charged with the maintenance of
public order. 'l'hc threat to public order should
therefore arise from the nature of the demonstration
prohibited. No doubt, ff the rule were so fral)'.leq
1962
Kameshwar Prasad
v.
The Stale of Bihar
Ayyangar J.
• 96Z
Ko~1hwar Pra1ad
v.
Tht Stalt of Bi/111'
A»angar J.
384 SUPREME COURT REPORTS [1962] SUPP .
as to single out those types of demonstration which
were likely to lead to a distnrhance of public tran.
qnillity or which would fall under the other limiting
criteria specified in Art. 19(2) the validity of the
rule could have been sustained. The vice of the
rule, in our opinion, consists in this that it. lays a
ban on overy type of demonstration- bi> the Harne
however innocent and however incapable of causing
a breach of public tranquillity and does not confine
itself to those forms
of demonstrations which
might lead to that result.
Learned Counsel for the respondent and those
who supported the validity of the rule could not
suggest that on the language of the rule as it
stood, it was poBBible to read it as to separate the
legal from the unconstitutional portion of the provision. As no suoh B<>paration is possible the <'ntire
rule has to be struck down as uneonstitutional.
\Ve have rejected the broad contention that
persons in the servicn of government form a class
apart to whom the rights guaranfre<l by Part III
do not, in general, apply. By aee('pting the contention that the freedoms guarant.,ed by Part HI and
in pa.rticular those in Art. J\)( I)( a) apply to the
servants of government we should not be taken to
imply that in rolation to this class'Of citizen the
responsibility arising from oflicial position would
not by itsolf impose some limitntion~ on tho excrdse of their rights as citizens. For inst:rncc, s.!i4 (2)
of the Income-tax Act, 1922, enacts:
"If a public servant discloses any particulars contained in' anv such statement.,
return, accounts, docum,;nts, cvidcncc affidavit, deposition or record, ho shall be punishable with imprisonment which may extend to
six months, an<l shall alHo be liable to fine."
Section 128(1) of the Representat.icm of thn People
Act, 19!il, enjoins on every officer, clerk, agent etc.
who performs any duty in connection with tpe
•
'
,;-..
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3 s.c.R. SUPREME couRT REPoR±s
3s5
recording or counting of votes at an election shall
maintain the secrecy of the voting and shall not
communicate to any person any information calculated to violate such secrecy, and visits the breach
of the rule by punishment with imprisonment for a
term which inay extend to three months or with fine.
It cannot be contended that provisions on these or
similar lines in these or other enactniim ts restrict
the freedom of the officers etc. merely because they
are prohibited from communicating information
which comes to them in the course of the performance of the duties of their office, to othtrs. The
information having been obtained by them 'in the
course of their duties by virtue of their official
position, rules or provisions of the law prescribing
the circumstances in which alone such information
might be given out or used do not infringe the right
of freedom of speech as is guaranteed by the Con·
stitution.
We would therefore allow the appepl in part
and grant the appellants a declaration that r. 4A in
the form in which it now stands prohibiting "any
form of demonstration" is violative of the appellants' rights under Art. 19(1)(a) & (b) and should
therefore be stuck down. It is only necessary to
add that the rule, in so far as it prohibits a strike,
cannot be struck J.own since there is no fundamental right · to resort to a strike. As
the appellants have succeeded only in part, there will be na
order as to costs in the appeal.
Appeal allowed in part.
W62 --
Kameshwar Prasad
v.
Tbe State of Bihar
AyyangarJ.