# SANTOKH SINGH v. DELHI ADMINISTRATION

- **Citation:** [1973] 3 S.C.R. 533
- **Court:** Supreme Court of India
- **Decided:** 1973-02-20
- **Case number:** Criminal Appeal No. 197 of 1972
- **Bench:** A. Alagiriswamj, I. D. Dua, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/santokh-singh-v-delhi-administration-5847
- **Pages:** 8

## Headnote

Constitutwn of India, Article l9(l)(a)-Punjab Security of State
Act (No. 12 of 1953)-Sec. 9 whether
violates
Article 19(1)(a)-
Speech or statement which "tends to over throw the
State"-whether
restriction unreasonable-Constitution of India,
Art. 136-Appeal
by
Speciui leave on a pure queStion of law effecting constitutional validity of
an Act-lvhether can be raised for first time in Supreme Court-Scope
of appeal lln special [eave-whether apper/ant can
claini
adjudicction
on n1crits as of right.
The appellant was prosecuted under section 9 of the Maintenance
of
Punjab
Security
of
State
Act
for
addressing
a
public meeting in which it was alleged that he
had incited
th• defence
employees to commit offences prejud'icial to security of the State or to
the maintenance of public order. Sec. 9 of the Act prohibits speeches
or staten1ents etc, which have effect of undermining the security
of
the State, friendly .relations with foreign States, public order
decency
or morality or which am,oun·t to contempt of court,
defamation
or
incitenlent to an offence prejudicial to the security of th~ State or the
maintenance of public order or Wlhich tends to over throw
the · State._
On perusal of the documents filed u/s. 173 of the Cr.P.C., the Magistrale
came to the conclusion that the prima facie case was established.
The
appellant
un~uccessfuJiy challenged the said 1nter-locutory order before
the Sessions Court and then in th~ High Court.
On appeal by special
leave, the appellant raised the questio.o of constitutional
validity
of
Sec. 9 of the ,\ct. The appellant contended: (i) that Sec. 9
of the
Punjab Security of State Act waSI violative of the fundamental
right
guaranteed under Art. 19(1) (a) of the Constitution, and (ii) in the
altern11tive, thE ope'ration of Sec. I) should be limited
only
to
suc}1
matters as involve incitement to violence or intention or
tendency to
create
publi~ disorder or cause disturbance tc> public peace.
Jn di!'-
missing the appeal.
HELD : (i) Except the words "tends to o\·er throw the State"
the
rest of the provisions of Section 9 rep<oduce the provisions of Art. 19(2)
of the Constitution. The prohibition relating
to
offending
speech,
wod!s or the . other publications wbic!) tend to over throw the
State
clearly fall within the sweep of the expression "incitemeiit to an offence
prejudicial to the security of the
State". Restriction,
therefore,
is
prima facie reasonable restriction.
rs37 C-El
. Superintendent of Central Jail, Fatehgarh v. Ram· Manohar
Lohia
11962] 2 S.C.R. 321, distinguished on facts.
(ii) Reasonable restrictions in respect of matters specified in Art.
1?(2). are essential for integrated development on egalitarian. progresOJve lines of any peace lovin~ civilised society. Art. 19(2) thus save•
the constitutional validity of Sec. 9 of the Act. The analogy between
s: 124( I) !PC and Sec. 9 of the Act is wholly misoonceived
and
in
vrew of ~he comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot
be . re~tncted to those speeches and expressions which ·ir.cite or tend
to mc1te viclence only.
Sec. 9 cannot be interpreted in
a
restricted
2-·L 761 SuPCl/73
.
534
SUPREME COURT REPORTS
[1973] 3 S.C.R.
manner Sec'. 124( 1) IPC was interpreted in Kedarnath Singh v. State of
A
Bihar r.1966 Supp, 2 S.C.R. 7691. [539 A-Cl
(iii) 'fhc Supreme Court may allow the question of law elf~
the constitutional validity of an Act for the first ti~ to
be
k"aised
in Supreme Court.
In an appeal by special leave under Art. 136 of
the Constitution, the scope of the '-.ippeal is not enlarged after leave and
the appellant cannot as of right claim adjudicaticm
on
merits.
The
B
Court would not pronounce its opinion on the merits of
the
charge
framed against the appellant.
[540 C-E]

## Text

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SANTOKH SINGH
v.
DELHI ADMINISTRATION
February 20, 1973
533
[A. ALAGIRISWAMJ, I. D. DUA AND C. A. VAIDIALINGAM, JJ.J
Constitutwn of India, Article l9(l)(a)-Punjab Security of State
Act (No. 12 of 1953)-Sec. 9 whether
violates
Article 19(1)(a)-
Speech or statement which "tends to over throw the
State"-whether
restriction unreasonable-Constitution of India,
Art. 136-Appeal
by
Speciui leave on a pure queStion of law effecting constitutional validity of
an Act-lvhether can be raised for first time in Supreme Court-Scope
of appeal lln special [eave-whether apper/ant can
claini
adjudicction
on n1crits as of right.
The appellant was prosecuted under section 9 of the Maintenance
of
Punjab
Security
of
State
Act
for
addressing
a
public meeting in which it was alleged that he
had incited
th• defence
employees to commit offences prejud'icial to security of the State or to
the maintenance of public order. Sec. 9 of the Act prohibits speeches
or staten1ents etc, which have effect of undermining the security
of
the State, friendly .relations with foreign States, public order
decency
or morality or which am,oun·t to contempt of court,
defamation
or
incitenlent to an offence prejudicial to the security of th~ State or the
maintenance of public order or Wlhich tends to over throw
the · State._
On perusal of the documents filed u/s. 173 of the Cr.P.C., the Magistrale
came to the conclusion that the prima facie case was established.
The
appellant
un~uccessfuJiy challenged the said 1nter-locutory order before
the Sessions Court and then in th~ High Court.
On appeal by special
leave, the appellant raised the questio.o of constitutional
validity
of
Sec. 9 of the ,\ct. The appellant contended: (i) that Sec. 9
of the
Punjab Security of State Act waSI violative of the fundamental
right
guaranteed under Art. 19(1) (a) of the Constitution, and (ii) in the
altern11tive, thE ope'ration of Sec. I) should be limited
only
to
suc}1
matters as involve incitement to violence or intention or
tendency to
create
publi~ disorder or cause disturbance tc> public peace.
Jn di!'-
missing the appeal.
HELD : (i) Except the words "tends to o\·er throw the State"
the
rest of the provisions of Section 9 rep<oduce the provisions of Art. 19(2)
of the Constitution. The prohibition relating
to
offending
speech,
wod!s or the . other publications wbic!) tend to over throw the
State
clearly fall within the sweep of the expression "incitemeiit to an offence
prejudicial to the security of the
State". Restriction,
therefore,
is
prima facie reasonable restriction.
rs37 C-El
. Superintendent of Central Jail, Fatehgarh v. Ram· Manohar
Lohia
11962] 2 S.C.R. 321, distinguished on facts.
(ii) Reasonable restrictions in respect of matters specified in Art.
1?(2). are essential for integrated development on egalitarian. progresOJve lines of any peace lovin~ civilised society. Art. 19(2) thus save•
the constitutional validity of Sec. 9 of the Act. The analogy between
s: 124( I) !PC and Sec. 9 of the Act is wholly misoonceived
and
in
vrew of ~he comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot
be . re~tncted to those speeches and expressions which ·ir.cite or tend
to mc1te viclence only.
Sec. 9 cannot be interpreted in
a
restricted
2-·L 761 SuPCl/73
.
534
SUPREME COURT REPORTS
[1973] 3 S.C.R.
manner Sec'. 124( 1) IPC was interpreted in Kedarnath Singh v. State of
A
Bihar r.1966 Supp, 2 S.C.R. 7691. [539 A-Cl
(iii) 'fhc Supreme Court may allow the question of law elf~
the constitutional validity of an Act for the first ti~ to
be
k"aised
in Supreme Court.
In an appeal by special leave under Art. 136 of
the Constitution, the scope of the '-.ippeal is not enlarged after leave and
the appellant cannot as of right claim adjudicaticm
on
merits.
The
B
Court would not pronounce its opinion on the merits of
the
charge
framed against the appellant.
[540 C-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
197 of 1972.
Appeal by special leave from the judgment and order dated
24th day of February 1972, of the Delhi High Court in Cr. Rev.
c
No. 469 of 1970.
S. C. Agarwala and A. K. Gupta for the appellant.
D. P. Bhandari and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
DuA, J.
This appeal by special leave is directed against the
judgment and order of a learned single Judge of the High Court
of Delhi dated February 24, 1972 rejecting the appellant's revision
petition under ss. 430 and 561-A of the Code of Criminal Procedure. In that revision he had prayed that the charge franwd
against him by a Magistrate, First Cl'ass, New Delhi on July 3,
1969 under s. 9 of the Punjab Security of State Act (Punjab Act
no. 12), 1953 (hereinafter called the Act) be quashed. The
special leave petition originally came up for preliminary hearing
before a bench of this Court on August 18, 1972 when notice to
show cause was issued. On September 19, 1972 the hearing was
again adjourned for a week to enable the petitioner's counsel to file
a writ petition. It appears that no writ petition was filed but on
September 26, 1972 this Court granted special leave on uwal
terms. The appeal was also directed to be heard on the existing
paper book with liberty tb the parties to file such additionaJI documents as they wished to file from the record. The appeal was
directed to be_listed for hearing in the second week of Januar:y,
1973. Sometime in January, 1973 the aopellarit presented criminal miscellaneous petition no. 32 of 1973 seeking permission to
urge additional grounds. In that application the constitutional
validity of s. 9 of the Act was questioned. The said section, according to the averment in that petition, infringes the fundamentjd
right of speech guaranteed under Art. 19(1)(a) of the ConsQ.
tution.
It is alleged by the prorecution that the aooe!lant had addressed
a public' meeting of the employees of the Defence Department on
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SANTOKH SINGH v. DELHI ADMN. (Dua, J.)
535
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October 9, 1968 and in the course of his speech he had incited the
said employees to commit offences prejudicial to the security of the
State or to the maintenance of public order. The Magistrate had,
on perusal of the documents filed under s. 1973, Cr. P.C. framed
a charge against the appellant punishable under s. 9 of the Act.
According to the judgment of the High Court the offending porB tion of the speech which had been delivered in Hindi reads as
follows :
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"There will be hunger strike at Chavan Sahib's kothi
No. 1 Race Course Road.
If Chavan Sahib thinks that
they will be"in position to .crush us with the assistance of
C.R.P. and B.S.F. then that is his misunderstanding.
Chavan Sahib when the Britishers had to leave· this
country then the same military and police will push you
out. Because these children of military and police
personnels are also hungry they also require bread for
eating. Therefore, the day has to come when after their
unity these workers will send you out. Comrades the
Government suffered the moral death when it promulgated the ordinance. Because we had no idea of starting any violance, when we demanded bread, clothes
and house. This struggle of ours will continue. If Government servants die then other labourers will take this
struggle ahead. One thing more I want to tell you that
if there will be no celebration of Diwali in the house of
our .fifty thousand people, then there shall be darkness
in the houses of these ministers. I want to tell you
Chavan Sahib that if your repression continued in the
same way, one Udham Singh will be born amongst these
labourers who will not let you live as U dham Singh
killed Dyre after going to London .
Annexures I and II attached to the petition under Art. 136 of the
Constitution stated in para 4 thereof to be the English translation
of the ·statements of the two police officers on the basis of which
the charge sheet had been filed in court contained a couple of more
sentences which do appear to be of some importance. But we
consider it unnecessary for our-present purposes to refer to them.
The High Court considered the part of the speech reproduced
above and after referring to the decisions of this Court in Srate of
Bihar v. Shrimati Shailba/a Devi('), Ram Manolwr Lohia v. State
of Bihar(') and Sudhir Kumar Saha v. The Commissioner of
Police(') dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence
under s. 9 of the Act. It was, however. added that it was open to
the petitioner either by cross-examination of the prosecution
(1) A.l.R. 1952 S.C. 320.
(21 A.T.R. 1966 S.C. 740.
(3) [19701 I S.C.C. 149.
536
SUPREME COURT REPORTS
~
(1973] 3 S,C.R.
witnesses or by adducing evidence in defence to show that in the
circumstances under which these remarks were made they did not
amount to an incitement to an offence prejudicial to the security of
the State or the maintenance of public order. The High Court felt
that at that stage it could not be_ said that there was no prima facie
case against the petitioner under s. 9 of the Act.
In this Court Shri S. C. Agarwal questioned the vires of s. 9
of the Act, contending tijat this section is violative of the fundamental right guaranteed by Art. 10 (I)( a) Of the Constitution.
No doubt, this point was not raised in the· High Court and in this
Court also it was specifica!Iy sought to be raised only in the subsequent applications presented in January, 1973 but as the speech
in/question was itself 5ought in para 5 of the petition for special
leave to be protected ,by Art. 19 (I) (a) and as it was a pure question! of law raising the constitutionality of s. 9 of the Act we permitted the counsel to raise it.
Section .9 of the Act reads :
'·9. Dissemination of rumours, etc.-
Whoever
(a) makes any speech, or
(b) by words, whether spoken or written, or by signs
or by visible or audible representations or otherwise publishes any statement, rumour or report,
shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with
foreign States, public order, decency or moraljty, .. QJ:
amounts to contempt of ,Court, defamation or incitement to an offence prejiidicial tq the security of the State
or the maintenance Of public order, or tends to overthrow the !?tate, be punislfaple with impri!IO'ninent which
may extend to three years dr with fine or with both."
This section on its own plain Ieiding• taken within its fo(d all the
objectionable matters which had been taken by sub-Art. (2) of
Art. 19 out of the guaranteed freedom of speech and expression
protected by cl. (a) of Art. 19(1). In order to fully understand
f!ie f;e7®m of speech and expression guaranteed by the Constitution 1t 1s necessary to reproduce Art. 19(l)(a) and (2) :-
Right to Freedom
19(1) All citizens shall have the right-
( a) to freedom of speech and expression;
(2) Nothing in sub-clause (a) of clause (1) shall
affect the operation of any existing law, or prevent the
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SANTOKH SINGH V, DELHI ADMN, (Dua, /,)
537
State from making any Jaw, 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 soverQignty and integrity of India, the security of the State,
friendly rel!ltions with foreign st!!tes, public order, de.-
oency or morality, or in relation to contempt of court,
defamation or incitement to an offonce".
It may appropriately be.pointed out here that sub-Art. (2) was
amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India. This !imitation was not in this sub-Article in 1953
but as it does not affect the question raised in this case we need
say notlting more about it.
Reading s. 9 of the Act and Art. 19 ( 2) of the Constitution it
is obvious that the only matter specifically contained in s. 9 in
addition to those stated in Art. 19(2) relate to the offendinr,
speech, words or other publications which ''.tends to overthrow the
State". Now this matter would clearl1 also fall within the sweep
of the expression "incitement to an offence. prejudicial to the security of the State" contained ins. 9 and within Art. 19(2) where
it speaks of "reasonable restrictions .... in the interest of. . . . the
security of the State". Anything tending to overthrow the State
lmliSt necessarily be prejudicial to the security of the State and.
therefore, a law can be made placing reasonable restrictions on the
right of freedom of speech and expression in this respect in the
interests of security of State. Prima facie, therefoi:e, s. 9 clearly
falls within the express language of Art. 19 ( 2) .
On behalf of the appellant great stress was laid on Superilllendent of Central Jail, Fatehgarh v. Ram Manohar Lohia(1) where
ihis Court struck down as unconstitutional s. 3 of the U.P. Special
F
Powers Act (U.P. Act 14 of 1932). That section reads:
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"3. Whoever by word, either spoken or written or by
signs or by visible representations or otherwise, instigates, expressly or by implication, any person or class of
persons not to pay or to defer payment of ani liability,
~nd whoever does any a7t with intent or.knowing it to be
likely. t~at any w<;>rd~, Sl~s or visible
repr~ntation>
contammg such mstigation shall thereby be communicated directly or indirectly to any person or class of
p~rso~s, iry. any manne.r whatsoever, shall be punishable
with imprisonment which mav extend to si1C months or
with fine, extending to Rs. 250, or with both."
'
On the face of its plain language this section is materially different
from s. 9 of the Act. It therefore does nor require elaborate argu-
{1) [1962] 2 S.C.R. 321.
538
SUPllEME C()UllT llEPOllTS
(1973] 3 S.C.ll.
ment for distinguishing this decision. _Sec!ion 3 of the U.P. ~ct is
clearly hit by Art. 19(1) (a) and can on no reasonable or rational
argument be saved by Art. 19(2). There being absolute!y no
1similarity between that section and s. 9 of the Act with whi.c.h we
are concerned, the ratio of that decision cannot serve as a precedent for invalidating s. 9 Of the Act. The appellant's learned
counsel then drew our attention to Kedarnath Singh v. State of
bihar (1) in which ss. 12A and 505, I.P.C. were held to be in the
interest of public order and within the almbit of constitutional limitations contemplated by Art. 19(1) (a) rell!l with Art. 19(2). On
!f;hQ analogy of s. 124A as construed in ~
decision it was contended that in order to bring s. 9 of the Act within the constitutional limits of Art. 19(2) it must similarly be construed narrowly
so that the fundamental freedom of speech and eXpression is not
unduly, restricted. The operation of s. 9 of the Act, it was submitted, should be limited only to such matters as involve incitei;nent
to violence or intention or tendency to create public disorder or
. cause !disturbance of public peace.
The fundamental right guai:anteed by Art. 19( 1) (a) and the interest of public order protected by Art. 19(2) according to Shri Agarwal's submission.
must be !properly adjusted and a correct balance struck between
two.
Jn our opinion, the principle governing the construction of Art.
19(1)(a) read with Art. 19(2) is well crystallised by now in
various decisions of this Court and it is unnecessary to cover the
whole ground over again by going through them extensively,
We of course agree with Shri Agarwal that the fundamentar
right guaranteed by Art. ~9( 1) (a) and the interest of public protected by Art. 79(2) must be properly adjusted and reasonable
balancd struck between the two. There can be no dispute that
there is no such thing as absolute or unrestricted freedom of speech
and expression wholly free from restraint for that would amount to
uncontrolled licence which would tend to lead to disorder and
anarchy. The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in·
our Republic. Our governmental set up being elected, limited and:
responsible "".e need requisite freedom of animadversion, for our·
social interest ordinar\ly demands free propagation of views. Free-·
dom. to think as one likes. and to speak as one thinks are as· a
ru,1e, indisjiensable to the discovery and soread of truth and' wit.bout 11ree s.l>eech discussion may well be futile. But at the same'
. time we can only ignore at our peril the vital importance of our
social interest in, inter alia, public order and security of our State.
It is for this reason that our Constitution has rightly attempted to
strike a proper balance between the various competing social inrn [19661 Supp. 2 S.C.R. 769.
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SANTOKH SINGH v. DELHI ADMN. (Dua, /.)
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terests. It has permitted imposition of reasonable ~tri_ctions ~m
the citizen's right of freedom of speech and expression_ m the interest of, inter alia, public order, security of State, decency or
morality and impartial justice, to serve the larger coUective in~erest
Of the nation as a whole. Reasonable restriction in respect of
matters specified in Art. 19(2) are essential for integrated development on egalitarian, progressive lines of any peace-loving, civilised
s0ciety. Article 19(2) thus saves the constitutional validity of s.
9 of the Act. The analogy between s. 124A, l.P.C. and s. 9 of
the Act is wholly misconceived and in view of the comprehensive
sweep of Art. 19(2) we are unable to restricts. 9 of the Act only
tp ltliose s~hes and expressions which incite or te,nd to incite
violence.
' Learned counsel also tried to refer us to some American decisions for developing the argum~nt that the guaranteed freedom of
speech and expressiop. should be broadly construed buf we 'did not .
consider it necessary to go into the American decisions, notwith-.
standing the fact that in Express Newspapers (P.) Ltd, v. Union
D
of l11dia(') it was observed that .American decisions were relevant
for the purpose of understanding the scope of Art. 19(1) (a). In
our opinion, it is hardly fruitful to refer to the American decisions
particularly when this Court has more than once clearly enunciated
the scope and effect of Art. 19(1)(a) and 19(2). The test of
reasonableness of the restriction has to be considered in each case
gin the light of .the nature of the right infringed, the purpose of the
restriction, the extent and the nature of the mischief required to be
suppressed and the prevailing social and other conditions at the
time. There can be no .abstract standard '1r general pattern of
reasonableness. Our Constitution provides reasonably precise,
general guidance in this matter. It would thus be misleading to
F
construe it in the light of American decisions given in different
bontext. (Section 9 of the Act is, in our view, plainly within the
le!tlslative competence of th~ Punjab Legislature and it would be
for the court in which the appellant is being tried to decide as to
how far the appellant's_ speech is covered by this section.
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Shri Agarwal made a strenuous effort to persuade us to cons- .
true the offending portion of the speech as reproduced in the judglllllnt of the High Court and express our opinion whethee or not
the charge against him has been lawfully framed. The charge reads
as under :
"That you. on or about the 9th day of October, 1968
at 4.30 to 5.55 p.m. near the Railway Pathak in the
area of Delhi Cantt. made a speech at a public meeting
organised by Delhi Defence employees in which you
(I) [1959] S.C.R. 12.
54Q
SUPREME COURT REPORTS
[1973] 3 s.c.R.
demanded or caused incitement to an offence prejudicial
to the security of the State or the maintenance of public
order
and therein committed
an offence punishable
under
section 9 of
the P.S. Act and
within
my
cognizance."
The appellant, it may be pointed out, had approached the sessions
Court on revision to .have this charge quashed.
That court apparently did not agree with the appellant.
He then approached the
High Court on revision where also he failed.
Th_~ impugned
judgment of the High Court does not .show any serious legal infirmity resulting in failure of justice which should induce this Court
to interfere under Art. 136 of the Constitution. The submission
that at this Court has already granted special leave we must decide
the question of the legality of the charge on the merits has not
appealed to us.
Even at the final hearing of an appeal by special
leave this Court has to apply the same test which is attracted at the
preliminary stage when the leave to appeal is ·asked. for. After
leave the scope of the appeal is not enlarged and even at that stage
the appellant cannot as of right diiim adjudication on the merits
if this Court feels .that there is no grave injustice done to the appellant as a result of any serious legal infirmity.
We are unable
to find any such infirmity in the impugned judgment. The additional factor against our interference in this case in the interlocutory
character of the order sought to be quashed.
We have, however,
no doubt that the learned Magistrate trying the appellant's case
will deal with all the points raised before him O!.J the merits without being iciluenced by the tentative view expressed by the High
Court which the appelfant himself invited.
We also hope that
. this case which relates to a ~peech said to have been delivered in
October, 1968 and in which the prosecution was initiated as far
back as January, 1969 when the charge was put into-court, would
be disposed of with due dispatch and without avoidable delay. This
appeal fails and is dismissed.
S.B.W.
Appeal dismissed.
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