# Romtsh T hap/HJ• v. The Stau qf Madras. Faz.I Ali,]

- **Citation:** [1950] 1 S.C.R. 605
- **Court:** Supreme Court of India
- **Decided:** 1950-03-02
- **Bench:** Shri Harilal Kania C.J, SAIYID FAZL Au, Patanjali Sastri, Mehr Chand Mahajan, MuxHERJEA, DAs JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/romtsh-t-hap-hj-v-the-stau-qf-madras-faz-i-ali-143
- **Pages:** 16

## Headnote

Constitution of India. A1·t. 19. els. (I )(a) and (2)-Fundamental
right of freedom of speech and expreuion-Law imposing pre-censorship on newspapers for securing public safety and preventing public
disorder-Validity-Matter disturbing public safety or causing public disorder, whether "undermines the secut·ity of, or tends to overthrow, 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 Provincial Government or any authority authorised
by it in this behalf,
if satisfied that such action is necessary for preventing· or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in
writing adGresscd to a
printer, publisher or editor require that any matter relating to a
1950
Romtsh T hap/HJ•
v.
The Stau qf
Madras.
Faz.I Ali,].
1950
May 26.
1950
Brij Bhus""' &I
A'1t1lhtr
v.
T Ju S1au ef
n.lhi.
606
SUPREME COURT REPORTS
[1950]
particular subject or class of subjects shall before publication be
submitted for
~crutiny."
Held per KANIA
C. J.,
PATANJALI
S1i.sTRI,
MEHR
CHAND
·MAHAJAN, MuKHERJEA and
DAs
JJ.-(FAZL
ALI J. dissenting)
that inasumch as s. 7 ( l) ( c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by art. 19 (1) (a) of the Constitution for the pur- ·
pose of preventing activities prejudicial to public safety and maintenance
of
public order,
it was not a law relating to "a matter
which
undermines
the
security of, or tends
to overthrow, the
Stace''
within the meaning
of the saving provisions contained
in
cl. (2) of art. 19 and was therefore μnconstitutional and void.
[Romesh Thappm· v. The State 1950 S.C.R. 594] followed.
Per FAZL ALI J.-The expression
"public safety"_ has, as a
result of a long course of legislative practice acquired a
wellrccognised meaning and may be taken to denote safety, or security
of the State; and, though the expression "public order" is wide
enough
to cover
small disturbances of the peace which do not
jeopardise the security of the State yet, prominence given in the
Act to public safety, the fact that the Act is a
piece of
special
legislation providing for special measures· and the aim and scope
of the Act in general, show that preservation of public safety is
the dominant purpose of the
Act~ and .. public order" may well
be paraphrased in the context as "public tranquillity".
Public J
disorders which disturb the public
~ranquillity do undermine the
security of the State and as s. 7 ( 1) ( c) of the impugned Act is
aimed at preventing such disorders it is difficult to hold that it
falls outside the ambit of Art. 19(2) of the Constitution.
Held by the Full Court.-The imposition of pre<ensorship on
a journal is a restriction on the liberty of the press which is
an
essential "part of the right to freedom 0:£ speech and expression
declared by art. 19 (1) (a). Blackstone's Commentaries referred .to.
ORIGINAL JuR1SDICTioN : PETITION No. XXIX of 1950.
Application
under
article
32 of the.
Constitution
of India for a writ of certiorari and prohibition. The
facts are stated in the judgment.
N. C. Chatterjee ( B. Banerji, with him) for
the
petitioner.
· M.
C.
Setaluad, Attorney-Gene~al for
India, (S. M.
Sikri, with him) for the respondent.
1950. May 26. The judgment of Kania C. J ., Patanjali
Sastri, Mehr Chand
Mahajan, Mukherjea and Das
JJ.
was delivered by Patanjali Sastri J.
FAZL Au J. delivered a separate dissenting judgment.
S.C.R.
SUPREME COURT REPORTS
607
PATANJALI SAsTR1 J.-This is an application
under
article 32 of the Constitution praying for the issue of
writs of certiorari and prohibition to the respondent,
the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him
in regard
to
an English weekly
of Delhi called
the
Organizer
of
which
the first applicant is the printer
and publisher,

## Text

)
-!
S.C.R.
SUPREME COURT REPORTS
605
undermine the security of the State, but to this line of
argument there is a two-fold answer :-
( 1) The Act, as its preamble shows, is not intended
for petty disorders but for
disorders involving menace
to the peace and tranquillity of the Province, (2) There
arc degrees of gravity in the offence of sedition also
ahd an
isolated piece
of writing
of mildly
seditious
character by one insignificant individual may not also,
frotn
the
layman's point of view,
be -a matter which
undermines
the securitv
of the
State, but that would
not affect the law whi~h aims at checking sedition.
It
was also said that
the law as it stands may be misused by the State executive,
but misuse of the law
is
one thing and its being unconstitutional is
another.
We are here concerned with the latter aspect only.
I
shall
not pursue
the matter further as
I have said
enough on the subject in the connected c~se.
Petition allotved.
Agent for the petitioner :-K. /. Kale.
Agent for the opposite party :-P. A. Mehta.
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-censorship on newspapers for securing public safety and preventing public
disorder-Validity-Matter disturbing public safety or causing public disorder, whether "undermines the secut·ity of, or tends to overthrow, 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 Provincial Government or any authority authorised
by it in this behalf,
if satisfied that such action is necessary for preventing· or combating any activity prejudicial to the public safety or the maintenance of public order may, by order in
writing adGresscd to a
printer, publisher or editor require that any matter relating to a
1950
Romtsh T hap/HJ•
v.
The Stau qf
Madras.
Faz.I Ali,].
1950
May 26.
1950
Brij Bhus""' &I
A'1t1lhtr
v.
T Ju S1au ef
n.lhi.
606
SUPREME COURT REPORTS
[1950]
particular subject or class of subjects shall before publication be
submitted for
~crutiny."
Held per KANIA
C. J.,
PATANJALI
S1i.sTRI,
MEHR
CHAND
·MAHAJAN, MuKHERJEA and
DAs
JJ.-(FAZL
ALI J. dissenting)
that inasumch as s. 7 ( l) ( c) authorised the imposition of restrictions on the fundamental right of freedom of speech and expression guaranteed by art. 19 (1) (a) of the Constitution for the pur- ·
pose of preventing activities prejudicial to public safety and maintenance
of
public order,
it was not a law relating to "a matter
which
undermines
the
security of, or tends
to overthrow, the
Stace''
within the meaning
of the saving provisions contained
in
cl. (2) of art. 19 and was therefore μnconstitutional and void.
[Romesh Thappm· v. The State 1950 S.C.R. 594] followed.
Per FAZL ALI J.-The expression
"public safety"_ has, as a
result of a long course of legislative practice acquired a
wellrccognised meaning and may be taken to denote safety, or security
of the State; and, though the expression "public order" is wide
enough
to cover
small disturbances of the peace which do not
jeopardise the security of the State yet, prominence given in the
Act to public safety, the fact that the Act is a
piece of
special
legislation providing for special measures· and the aim and scope
of the Act in general, show that preservation of public safety is
the dominant purpose of the
Act~ and .. public order" may well
be paraphrased in the context as "public tranquillity".
Public J
disorders which disturb the public
~ranquillity do undermine the
security of the State and as s. 7 ( 1) ( c) of the impugned Act is
aimed at preventing such disorders it is difficult to hold that it
falls outside the ambit of Art. 19(2) of the Constitution.
Held by the Full Court.-The imposition of pre<ensorship on
a journal is a restriction on the liberty of the press which is
an
essential "part of the right to freedom 0:£ speech and expression
declared by art. 19 (1) (a). Blackstone's Commentaries referred .to.
ORIGINAL JuR1SDICTioN : PETITION No. XXIX of 1950.
Application
under
article
32 of the.
Constitution
of India for a writ of certiorari and prohibition. The
facts are stated in the judgment.
N. C. Chatterjee ( B. Banerji, with him) for
the
petitioner.
· M.
C.
Setaluad, Attorney-Gene~al for
India, (S. M.
Sikri, with him) for the respondent.
1950. May 26. The judgment of Kania C. J ., Patanjali
Sastri, Mehr Chand
Mahajan, Mukherjea and Das
JJ.
was delivered by Patanjali Sastri J.
FAZL Au J. delivered a separate dissenting judgment.
S.C.R.
SUPREME COURT REPORTS
607
PATANJALI SAsTR1 J.-This is an application
under
article 32 of the Constitution praying for the issue of
writs of certiorari and prohibition to the respondent,
the Chief Commissioner of Delhi, with a view to examine the legality of and quash the order made by him
in regard
to
an English weekly
of Delhi called
the
Organizer
of
which
the first applicant is the printer
and publisher,
and the
second is the editor. On
2nd
March, 1950, the respondent, in exercise of powers
conferred
on him
by section 7 ( 1) ( c) of the
East
Punjab Public
Safety
Act,
1949, which
has been extendtd to the Delhi Province and is hereinafter referred
to ·as the impugned Act,
issued the
following order :
"Whereas the Chief Commissioner, Delhi, is satisfied that -Organizer, an English weekly of Delhi, has
been publishing highly objectionable
matter constituting a threat to public law and order and that action
as is hereinafter mentioned
is necessary for the
purpose of preventing or combating activities prejudicial to
the public safety or the maintenance of public order.
Now therefore in exercise of the powers conferred
by section 7(1)(c) of the East Punjab Public Safety
Act, - i949, as
extended to the Delhi Province, I,
Shankar Prasad, · Chief Commissioner, Delhi, do by
this order
require you Shri Brij Bhushan, Printer and
Publisher and Shri K. R. Halkani, Editor of the
aforesaid paper
to
submit
for scrutiny, in duplicate,
before
publication,
till fyrther
orders,
all communal
matter and news and views · about Pakistan including
photographs
and cartoons
other than · those derived
from official sources · or supplied by
the news agencies,
viz., Press Trust of India, United Press of India and
United
Press of America
to
the
Provincial
Press
Officer, or in his absence, to Superintendent of Press
Branch at his office at 5, Alipur Road, Civil Lines,
Delhi, between the hours 10 a.m. ·and 5 p.m. on
working days."
The only point argued before us relates to the constitutional validity of section 7 (1) ( c) of the impugned
Act which, as
appears from its preamble, was passed
"to provide
special
measures
to ensure . public
safety
19j0
Brij B/Uu1- Ill
AltOllttr
v.
Tlw Slau of
D1/hi.
PolaNjali
&slri, J.
1950
llr{i Bhushan &
Anollur.
v.
The State of
Delhi.
Palanjali
S,utri, .7·
608
SUPREMl<: COURT REPORTS
[1950]
and maintenance of public order." Section 7 ( 1) ( c)
· under which the aforesaid order purports to have
been made reads (so far as material here) as follows :-
'The Provincial
Government
or
any
authority
authorised
by
1t 111
this behalf if satisfied th~t such
action is necessary for the purpose of preventing or
combating any activity prejudicial to the public safety
or the
maintenance of public
order may, by
order
in writing addressed to a printer, publisher
or
editor
require that any matter relating to a particular subject or class of subjects shall before publication be
submitted for scrutiny."
The petitioners claim that this provision infringes
the fundamental right to the freedom of speech and
expression conferred upon them by article 19(1) (a) of
the Constitution inasmuch as it authorises
the imposition of a restriction on the publication of the journal
which is not justified under clause (2) of that article.
There can be little doubt that the imposition of precensorship on a journal is a restriction
on the
liberty
of the press which
is
an essential part of-the right to
freedom of speech ·and expression declared by article 19(1) (a). As pointed out by Blackstone in his
Commentaries "the liberty of the press consists in
laying
no
previous restraint
upon
publications,
and
not in freedom from censure for criminal matter when
published. Every freeman has an undonbted right to
lay what sentiments he pleases before the public ; to
forbid this, is to destroy the freedom of the press(').
The only question therefore is whether section 7 (l)(c)
which anthorises
the
imposition ·of such a restriction
falls within the reservation o[ caluse (2) of article 19.
As this question turns on comit!erations
which
are
essentiallv
the .<ame as those
on which our decision in
Petition No. XVI of 1950(') wJ' based, our judgment in
that case concludes the present
case also.
Accordingly,
for the reasons
in\licated in that judgment, we allow
this petition and hereby quash the impugned order of the
Chief Commissioner, Delhi, dated the 2nd March, 1950.
(1) Blackstone's Comn:.cntaries, Vol. IV~ pp. 151, 152.
(') Romtsh Thappar v. The State of Madras, supra p. 594.
S.C.R.
SUPREME COURT REPORTS
1950
FAUL Au J.-Tlie question raised in the ,case relates
to the validity of section 7(1) (c) of the East Punjab
Public Safety Act, 1949 (as extended to the Province
of Delhi); which . runs as follows:-
Brij Bliusltan &
.dllllllrlr
"The Proyincial Government
or
any
authority
authorised by it in this behalf if satisfied that such
action is necessary for the
purpose of
preventing or
combating any activity prejudicial to the public safety
or the maintenance of public order, may, by order 'tn
writing addressed to a printer, publisher or editor-
•
•
(c) require that
any matter relating
to a particular
subject or class· of subjects shall before publication be
submitted for scrutiny ;"
It should be noted that the provisio11s of sub-clause
( c) are not in gen!=ral terms but are confined to a
"particular subject
or . class
of subjects,"
and
that
having regard to the context in which these words are
used, they must be connected · with "public . safety or
the maintenance of public order."
·
The petitioners, on whose
behalf this provision is
assailed, are respectively the printer
(and · publisher)
,and
~ditor of ·. an English weekly . of Delhi called
Orgamzer, and they pray for the issue of writs of
certiorari and prohibition .. to the Chief Conimissioner, .
Delhi, with . a view "to examine . and review the" le~lity" ·
of and "restrain the operation" . of . and "quash" · the' ·
order made by him on the 2nd March, 1950, ·under ·. the .
impugned
section, directing · · them · ~~to . · · submit . • for
scrutiny, in duplicate, before . publication, till : further
orders, all communal matter and news and · · . views
about Pakistan including photographs · and
cartoons
other than those derived from official sources or SUp-'
. plied by the news agencJ.es .... " The order in question
recites, among other things that the Chief Comn:iis-;
sioner is
satisfied·
that
the Organizer has
been
publishing highly • objectionable . matter
constituting
a threat to · public law and order and that action ·to
which· refer(\ .ce has been made is
nec~ssary for ·the
purpose
of ' preventing
or
combating
activities
v.
TIM Stat. 'If
IM!ri.
Fazl JfliJ.
1950
v.
T h4 Sra/6 of
D1lhi.
/ia<I illi, ].
610
SUPREME COURT REPORTS
[1950}
prejudicial
to the public
safety
or the
maintenance
of public order. It is contended on behalf of the
petitioners
that
notwithstanding these
recitals the
order complained against is liable to be
quashed,
because it amounts
to
an infringement of the right of
freedom of speech
and
expression guaranteed
by
article 19 ( l) (a) of the Constitution. Articles 19 ( l) (a)
and (2), -which are to be read together, runs as follows :-
"19. (1) All citizens shall have the right-
( a) to freedom of speech and expression ;
"
"
"
(2) Nothing in sub-clause (a) of clause (I) shall
affect the operation of any existing law in so far as it
relates to, or prevent the State from making any
Law
relating to,
libel,
slander, defamation, contempt of
Cou~t or any matter which offends against ·decency or
morality or
which
undermines the
security of, or
tends to overthrow, the State."
It is contended
that section 7 ( l) ( c) of the Act,
under which the impugned order has been made, cannot be saved by clause (2) of article 19 of the Constitution, because it does not relate to any matter which
undermines the security of, or tends to overthrow, the
State. Thus the main
ground of
attack is that the
impugned law is an infringement of a fundamental
right and is not saved by the so-called saving clause
to which reference has been made.
There can be no doubt that to impose pre-censorship
on a journal, such as has been ordered by the Chief
Commissioner in this
case, is a
restriction
on the
liberty of the press which is included in the right to
freedom of speech
and
expression
guaranteed
by
article 19 (1) (a) of the Constitution, and the only
question which we have therefore to decide is whether
clause (2) of article 19
stands in
the
way
of the
petitioners.
The East Punjab Public Safety Act, 1949, of which
section 7 is a
part,
was
passed by
the
Provincial
Legislature in exercise of the power conferred upon 1t
by section 100 of the Government of India Act, 1935, is
S.C.R.
SUPREME COURT REPORTS
611
read with Entry 1 of List II of the Seventh Schedule to
that Act, which includes among other matters "public
order." This . expression in the general sense may be
construed to have reference to the maintenance of what
is generally known as law and order in the Province,
and this is confirmed by the words which follow it in
Entry 1 of List II and which have been put within
brackets, viz., "but not including the use of naval,
military or air forces or any other armed forces of
the Union in aid of the civil power." It is clear that
anything which affects public . tranquillity within the
State or the Province will also affect public order and
the State Legislature is therefore competent . to frame
laws on matters relating to public tranquillity
and
public order. It was
not
disputed · that
under the
Government of India Act, 1935
(under
which the
impugned Act was passed) . it was the responsibility of
each Province
to deal
with all . internal disorders
whatever their magnitude may be
and to preserve
public tranquillity and order within the Province.
At this stage, it will be convenient to consider the
meaning of another expression "public safety" which
is used throughout the impugned Act and which is also
chosen by its framers for its title.
This expression,
though it has been variously used in different contexts
(see the Indian Penal Code, .Ch. XIV), has not acquired a · well-recognized meaning in relation to an Act like
the impugned Act, as a result of a long course of legislative practice, and may be taken to denote safety or
security of the State. In this sense, it was used in
the Defence of the Realm (Consolidation) Act, 1914, as
well as the Defence of India Act, and this is how it
was judicially interpreted in Rex v. Governor of Wormwood Scrubbs Prison (1 ). T4e headnote of this case runs
as follows :-
"By section 1 of the Defence of the Realm (Consolidation) Act, 1914, power was given to His Majesty in
Council 'during the continuance of the present war to
·issue regulations ...... for securing the public safety and
the defence of the realm' :-
(1)[1 !)l!o) 2 K. B. 305.
7-s s. c. India (N.D.)/58
1950
Brjj Bhushan &
Another
v.
The State of
Delhi.
Fa-i:l Ali J.
1950
Brjj Bhushan (JI
Another
v.
The Slate of
Delhi
foci Ali].
612
SUPREME COURT REPORTS
[1950]
Held, that the
regulations thereby
authorized were
not limited to regulations for the protection of the
country against foreign enemies, but included regulations designed for the prevention of internal disorder
and rebellion."
Thus 'public order' and
'public
safety'
are allied
matters, but, in order to appreciate how they stand in
relation to each other, it
seems best to
direct our
attention to the opposite concepts which we may, for
convenience of reference, respectively label as 'public
disorder' and
'public
unsafety'. 1f 'public
safety' is,
as we have seen, equivalent to 'security of the State',
what I have designated as
public
unsafety
may be
regarded as equivalent to
'insecurity
of
the
State'.
When we approach the matter in this way, we find
that while 'public disorder' is wide enough to cover a
small riot or an affray and other cases where peace is
disturbed. by, or affects, a small group of persons, 'public
unsafety' (or insecurity of the State), will usually be
connected with serious
internal
disorders
and such
disturbances of public tranquillity as
jeopardize the
security of the State.
In order to understand the
scope of the Act, it
will be necessary to note that in the Act "maintenance
of public order" ·always occurs in juxtaposition with
"public safety", and the Act itself is called ''The East
Punjab Public Safety Act."
The
prominence
thus
given to 'public safety' strongly suggests that the Act
was intended to
deal with serious
cases of
public
disorder which affect public safety or the security of
the State, or cases in which, owning to some kind of
emergency or a grave· situation
having
arisen,
even
public disorders of
comp?ratively
small
dimensions
may have far-reaching effects on the ,security of the
State. It is to be
noted that
the
Act
purports to
provide "special measures to ensure public safety and
maintenance of public
order." The
words
"special
measures" are rather important, · because
they
show
that the Act was not intended for ordinary cases or
ordinary situations. The ordinary cases
are
provided
for by the Penal Code and other existing laws, and
..
S.C.R.
SUPREME COURT REPORTS
613
with these the Act which purports to be of a temporary
Act is not apparently concerned. It is concerned with
special measures which would presumably be required
for special
cases or
special
situations.
Once
this
important fact is grasped and the Act is viewed in the
proper perspective, much of the confusion which has
been created in the course of
the
arguments
will
disappear. The line of argument advanced on behalf
of the pc;_titioners is that since the Act has been passed
in exercise· ' of the power
granted by the expression
"public order," used in the Government of India Act,
which .is a general term of wide import, and since it
purports to
provide
for the maintenance of · public
order, its provisions are intended or are liable to be
used for all cases of breaches of public order, be they
small or insignificant breaches or those of a grave or
serious nature. This is, in
my opinion, approaching
the case from a wrong angle. The Act is a piece of
special legislation providing for special measures and·
the central idea
dominating it is
public
safety
and
maintenance of public order in a situation requiring
special measures.
It was argued that "public safety" and "maintenance of public order" are used in the Act disjunctively
and they are separated by the word "or" and not "and,"
and therefore we cannot rule out the possibility · of the
Act providing for ordinary as well as serious cases of
disturbance of public order and tranquillity. This, as
I have already indicated, is a somewhat narrow and
tf'chnical approach to the question. In construing the
Act, we must try to get at
its aim and purpose,
and before the Act is declared to be invalid, we must
see whether it is capable of being so construed as to
bear a reasonable meaning consistent with its validity.
We therefore cannot ignore the fact that preservation
of public safety is the dominant purpose of the Act
and that it is a special Act providing for
special
measures and therefore it should not be confused with
an Act which is applicable to ordinary situations and
to any and every trivial case of breach of public order.
1950
Brij B/iusfian Cl>
Anolhn
v.
T fie State of
Delhi.
Fiu:l Ali J.
1950
hrjj B/slulian 6f
.....,,.,,
v.
Tiu S1au of
INlhi.
Faz.I Ali].
614
SUPREME COURT REPORTS
[1950]
In my opinion, the word "or" is us¢d here not so much
to separate two wholly different c'Oncepts as to show
that they are closely allied concepts and can be used
almost interchangeably
in the
context. I think that
"public order" may well be paraphrased in the context
as public tranquillity and the words "public safety"
and "public order"
may be read as
equivalent
to
"security of the State" and "public tranquillity."
I will now advert once more to clause (2) of article 19 and state what I consider to be the reason for
inserting in it the words "matter which undermines
the security of, or tends to overthrow, the State." It
is well recognized in all systems of law that the right to
freedom of speech and expression or freedom of the press
means that any person may write or
say
what he
pleases so long as he does not infringe the law relating
to libel
or slander
or to
blasphemous,
obscene
or
seditious words or writings : (see Halsb\lfy' s Laws of
England, 2nd Edition, Vol. II, page 391).1 This is
practically what has been said in clause (2) of article 19,
with this difference only that instead of using the
words "law relating to sedition," the framers of the
Constitution have used the words mentioned above.
It is interesting to note that sedition was mentioned in
the original draft of the Constitution, but subsequently
that word was dropped and the words which I have
quoted
were inserted. I think it is not difficult to
discover the reason for this change and I shall briefly
state in my own words what I consider it to be.
, The latest pronouncement
by the
highest
Indian
tribunal as to the law of
sedition is
to be
found
in Niharendu
Dutt
Majumdar
v.
The
King(')
which has been quoted again and again and in which
Gwyer C. J. laid down that public disorder, or the
reasonable anticipation or likehood of public disorder,
is the gist of the offence of sedition and "the acts or
words complained of must either incite to disorder or
(1) [194•] •. c. ll, 38.
S.C.R.
SUPREME COUR'f REPORTS.
61~
must be such as to satisfy reasonable men that that is ·
their intention
or
tendency." For
this. view, the
learned Chief Justice
relied on certain
observations
of Fitzgerald J.
in R. v. Sullivan(1)1,
and he
also
added that
he was
content to
adopt
"the words
6£ tliat learned Judge
which
are
to be
found in
every book dealing with' this branch of the criminal
law." There is no doubt that what Gwyer C. J. has
stated in that case repre8ents the view of· a number of
·Judges and authors and was also the view of Sir James
Stephen in regard to whom Cave J. in his charge to
the jury in a case relating to the law of sedition [R. v.
·· Burns (1 ) said :-
"The law upon the question of what is seditious
and what is not is· to be found stated very clearly in a
book by Stephen J. who has undoubtedly a greater
·kaowledge of criminal law than any other Judge who
sits . upon the Bench, and what he has said upon the
. $Ubject of sedition was submitted to the other Judges,
who sometime back were engaged with him in drafting
a criminal code, and upon their report the Commissioners say . that his statement of law appears to them to be
stated accurately as it exi5"s at · present."
The decision. of Gwyer C. J. held
the ·field
for
several years until the Privy Council, dealing with a
case under the Defence of India Rules, expressed the
view
in
King
Emperor
v.
Sadhashiv
Narayan
Bhalerao (8 )
that the test laid down by thG learned
Chief Justice . was not applicable in India where the
offence under section 124A of the Indian Penal Code
should be construed with reference to the words used
in that section. They also added :-
''The word 'sedition' does not occur either in section 124A or in the Rule ; it is only found
as a
marginal note to section 124A, and Is not an operative
part of the section, but merely provides the name by
which the crime· defined in the section will be known.
(1) [1868]'11 Cox. C.C. 44.
(') [1886] 16. Cox. 355. (•) 74 I.A. 89.
Ul50
Brij Bhushan 6f
AllDl/ur ·
v.
TlllS1ai. of
Dllhi.
Fa.ti Ali].
1950
Brij Bhushan &
Anothlr
v.
TJr. Stau qf
Delhi.
Fa:/ Ali]·
616
SUPREME COURT REPORTS
[1950]
There can be no justification for restricting the contents of the section by the marginal note. In England
there is no statutory definition of sedition ; its meaning
and content have been laid down in many decisions,
some of which are referred to by the Chief Justice, but
these decisions
are not
relevant when you have a
statutory definition of that which is termed sedition as
we have in the present case.
Their Lordships are unable to find anything in the
language of either section 124A or the Rule
which
could suggest that 'the acts or words complained of
must either incite to disorder or must be such as to
satisfy reasonable men that this is their intention or
tendency.' "
The framers .of the Constitution must have therefore found themselves face to face with the dilemma
as to whether the word "sedition" should be used in
article 19 (2) and if it was to be used in what sense it
was to be used. On the one hand, they must have
had before their mind the very · widely accepted view
supported by numerous
authorities
that
sedition was
essentially an offence
agai11.st public
tranquillity and
was connected in some way or other with public disorder ; and, on the other hand, there was the pronouncement of the
Judicial Committee that
sedition
as defined in the Indian Penal Code did not necessarily
imply any intention or
tendency to
incite disorder.
In these circumstances, it is not surprising that they
decided not to use the word "sedition" in clause (2)
but used the more general. words which cover sedition
and everything else which
makes
sedition
such a
serious offence.
That
sedition
does
undermine the
security of the State is a matter which cannot admit
of much doubt. That it undermines the
security
of
the State usually through the medium of public disorder is also a matter on which eminent Judges and
jurists are agreed.
Therefore it is difficult to hold that
public disorder or
disturbance of
public
tranquillity
are not matters which undermine the security of the
State.
S.C.R.
SUJ?REME COURT REPORTS
617
It will not be out of place to quote here the following passage from Stephen's Criminal Law of England
(Vol. If, pp. 242 and 243) :-
"It often happens, however, that the public peace is
disturbed by · offences which
without
tending to the
subversion of the existing political constitution practically
subvert
the
authority
of
the
Government
over a greater or less local
area for a
longer
or
shorter time.
The Bristol
riots in
1832 · and
the
Gordon riots in
1780
are
instances
of this
kind.
No definite
line. can be
drawn
between insurrections of
this
sort,
ordinary
riots,
and
unlawful
assemblies. The difference between a meeting stormy
enough to cause well-founded fear of a breach of the
peace, and a civil war the result of which may determine the course of a nation's history· for centuries, is
a difference ·of
degree. Unlawful
assemblies,
riots,
insurrections, rebellions, levying
of war,
are offences
which run into each other, and are not capable of
being marked
off by
perfectly
defirute
boundaries.
All of them haye in common one feature, namely,
that the normal tranquillity of a civilised society is
in each of the cases mentioned
disturbed
either
by
actual force or at least by the show and threat of it.
Another class of offences against public
tranquillity
are those in which no actual force is either employed
or displayed, but in which steps are taken tending to
cause it.
These are the formation of secret societies,
seditious conspiracies, libels or words spoken.
Under these
tcrnal public
arranged.''
two heads all offences against the intranquillity
of
the
State
may be
This passage brings out two matters with remarkable clarity. It shows
firstly that
sedition is
essentially
an
offence
against
public
tranquillity
and
secondly that broadly speaking there are two · classes
of offences agaihst public tranquillity : (a) those accompanied
by
violence
including
disorders
which
1950
Brij BhushfJJI &
Anoth.r
v.
The State of
Delhi.
Fazl Ali J.
1950
.Brij B.- l'I
.,,..,,,,,
v.
TA1St.u of
DI/Iii.
FatJ .Ali J.
618
SUPREME COURT REPORTS
[1950]
affect tranquillity of a considerable number of persons
or an extensive local area, and (b) those not accompaI).icd by violence but tending to cause it, such as
seditious utterances, seditious
conspiracies,
etc.
Both
these classes of offences are such as will undermine. the
security of the State or tend to overthrow it if left
unchecked, and, as I have tried to point out, there is
· a good deal of authoritative opinion in favour of the
view that the gravity ascribed to sedition is due to
the fact that it tends to seriously affect the tranquillity and security of .the
~tate. In principle,
~en, .it
would not have been logical to Icfer to sedioon m
clause (2) of article . 19 and omit matters .which are
no less grave and which
have
equal potentiality for
undermining the security
of the
State.
It
appears
that the framers of the Constitution preferred to adopt
the logical course and have used the more general and
basic words which are apt to cover sedition as well as
other matters which are as detrimental to the security
of the State as sedition.
If the Act is to be viewed as I have suggested, it is
difficult to hold that section 7 ( 1) ( c) falls outside the
ambit of article 19 ( 2). That clause clearly- states that
nothing in clause ( 1) (a} shall
affect
the
operation
of any existing law relating to any
matter
which
undermines the security
of, or
tends to
overthrow,
the State. I have
tried to
show
that
public
disorders and
disturbance
of
public
tranquillity
do
undermine
the
security
of the
State . and if the
Act is a law
aimed at
preventing
such
disorders,
it fulfils the requirement of the Constitution. It is
needless to add that the word "State" has been defined
in article 12
of the
Constitution to
include
"the
Government and Parliament of India and the Government and Legislature of each of the States and all local
or other authorities within the territory of India or
under the control of the Government of Jndia."
I find that section 20 of the impugned Act provides
that
the Provincial Government may by
notification
I
S.C.R.
SUPREME COURT REPORTS
619
declare that the whole or any part of the Province as
may be specified in the notifiGation is a dangerously
disturbed area. This provision
has
some
bearing on
the aim and object of the Act, and we cannot overlook
it when considering its scope. It may be incidentally
mentioned that we have been
informed
that,
under
this section, Delhi Province has been notified to be a
"dangerously disturbed area."
It must be recognized that freedom of speech and
expression is 'one of the most valuable rights guaranteed
to a citizen
bv
the
Constitution
and
should be
jealously guarded by the
Courts.
It
must
also be
recognised that free political discussion is essential for
the proper functioning of a democratic government, aad
the tendency af modern jurists is to deprecate censorship though they all agree that "liberty of the press"
is not to
be confused with its "licentiousness." But
the
Constitution
itself has prescribed . certain limits
for the exercise of the freedom of speech and expression
and this Court is only called upon to sec whether a
particular case comes
within
those
limits.
In
my
opinion, the law which is impugned is fully saved by
article 19 (2) and if it cannot he
successfully assailed·
it is not possible to
grant
the
remedy
which the
petitioners arc seeking here.
As has been stated already, the order which is impugned in this case recites
that the
weekly Organizer has been publishing highly
objectionable
matter
constituting a threat of public
law and
order" and
that ·the action which it is proposed to take against
the petitioners "is necessary for the. purpose of preventing or combating ·activities
prejudicial
to
public
safety or . the maintenance of
public
order."
These
facts arc supported by an affidavit sworn by the Home .
Secretary to the Chief Commissioner, who also states
among other things that the order in question was
passed by
the
Chief Commissioner
in consultation
with the C-cntral
Press
Advisory
Committee,
which
is an independent
body
elected
by
the
AU-India
Newspaper Editors' Conference and is . composed of
8---5 S. C. India (N.D.J/58
1930
Brij BJ111shtJ11 f.!
btit,,,.
v.
TllA Stnttef
D1/hi.
1950
v.
T t.. SlotL ef
Dll/O.
Ttll!l ,(Ji J.
·620
SUPREME COURT REPORTS
[m01
reprcsentati ves of some of
the
lc;.ding
papen such
as The Hind•stao
Times,
Stausmtm,
etc.
In
my
tipinion, there can be no doubt that the Chief Commissioner has purported to act in this case within the
sphere within which he is pemiitted to act under the
Jaw, and it is beyond the power of this Court to grant
the reliefs claimed by the petitioners.
In these circumstances, I would
dismiss
the
petitioners' application.
Petition allowed.
Agent for the petitioners : Ganpat RJli.
Agent for the respondent: P. A. Mehta.
QIPN-S1-5 S. C. Indi• (N. D.)/58.-27-2-59-500.