# THE SUPER.INTENDENT, CENTR.AL PR.ISON, FATEHGARE v. RAM MANOHAR. LORIA

- **Citation:** [1960] 2 S.C.R. 821
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 76 of 1956
- **Bench:** B. P. Sinha, P.B. Gajendragadkar, K. SuBBA RAo, K.C. DAs GUPTA, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-super-intendent-centr-al-pr-ison-fatehgare-v-ram-manohar-loria-1786
- **Pages:** 20

## Headnote

Fundamental
Right-Infringement of-Enactment imposing
restrictions on freedom of speech-Constitu.tional validity-Test-
"In the interest of public order".
Meaning of-Doctrine of severability-Applicability-Constitution of India, Arts. r9(r) (a), r9(2)-
U.P. Special Powers Act, r932 (U.P. XIV of r932) s. 3.
Section 3 of the U.P. Special Powers Act, 1932 (XIV of 1932),
provided as follows:-
"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 any liability, and whoevet does any act,
with intent or knowing it to be likely that any words, signs or
visible representations containing such instigation shall thereby
be communicated directly or indirectly to any person or class
of persons, in any manner whatsoever, shall be punishable
with imprisonment which may extend to six months, or with
fine, extending to Rs. 250, or with both."
The appellant, who was prosecuted under the section for delivering speeches instigating cultivators not to pay enhanced irrigation
rates to the Government, applied to the High Court for a writ of
habeas corpus on the ground, amongst others, that the said section
was inconsistent with Art. 19(1) (a) of the Constitution and as
such void. The High Court decided in favour of the appellant
and he was released. The State appealed to this Court and the
question for determination was whether the impugned section
embodied reasonable restrictions in the interests of public order
and was thus protected by Art. 19(2) of the Constitution.
Held, that even though in a comprehensive sense all the
grounds specified in Art. 19(2) of the Constitut.ion on which any
reasonable restrictions on the right fo freedom of speech must be
based can be brought under the general head "public order", that
expression, inserted into the Article by the Constitution (First
Amendment) 'Act, 1951, must be demarcated from the other
grounds and ordinarily read in an exclusive sense to mean public
peace, safety and tranquility in contradistinction to national
upheavals, such as revolution, civil strife and war, affecting the
security of the State.
Ramesh Thappar v. The State of Madras (1950) S.C.R. 594,
Brij Bhushan v. fThe State of Delhi. (1950) S.C.R. 605, The State
of Bihar v. Shailabala Devi. (1952) S.C.R. 654 and Cantewell v.
Connecticut. (1940) 310 U.S. 296, discussed.
I960
January 2c.
822
SUPREME COUR'f REPORTS (1960(2)]
i960
It is \vcll settled by decisions of this Court that in a restriction in order to be reasonable must have a reasonable relation to
The Superintendent, the object the Legislation has in view and must not go beyond it .
. Central Prison,
Restrictions, therefore, meant to be in the interest of public
Fatehgarh
order 'vhich have no proximate relationship or nexus with it
v.
but can be only remotely or hypothetically connected with it,
Ra1n .lfanohar cannot be reasonable within the meaning of Art. 19(2) of the
Lohia
Constitution.
Rex v. Basudcva, A.I.R. (r950) F.C. 67, applied.
Ramji Lal Modi v. The State of U.P. (r957) S.C.R. 860 and
Virendra v. The State of Pttnjab, (r958) S.C.R. 308, explained.
So judged, it cannot be said that the acts prohibited under
the wide and sweeping provisions of s. 3 of the Act can have any
proximate or even foreseeable connection with public order.sought
to be protected by it, and, consequently, that section, being
violative of the right to freedom of speech guaranteed by
Art. 19(1) (a) of the Constitution, must be struck down as
'
unconstitutional.
It would be incorrect to argue that since instigation by a
single individual not to pay taxes might ultimately lead to a
revolution resulting in distruction of public order, that instigation must have a proximate connection with public order. No
fundamental rights can be restricted on such hypothetical and
imaginary consideration.
Nor is it possible to accept the argument that in a democratic set u

## Text

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S.C.R..
SUPR.EME COUR.T R.EPORTS
821
THE SUPER.INTENDENT, CENTR.AL PR.ISON,
FATEHGARE
v.
RAM MANOHAR. LORIA
(B. P. SINHA, C.J., P.B. GAJENDRAGADKAR,
K. SuBBA RAo, K.C. DAs GUPTA AND J.C. SHAH, JJ.)
Fundamental
Right-Infringement of-Enactment imposing
restrictions on freedom of speech-Constitu.tional validity-Test-
"In the interest of public order".
Meaning of-Doctrine of severability-Applicability-Constitution of India, Arts. r9(r) (a), r9(2)-
U.P. Special Powers Act, r932 (U.P. XIV of r932) s. 3.
Section 3 of the U.P. Special Powers Act, 1932 (XIV of 1932),
provided as follows:-
"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 any liability, and whoevet does any act,
with intent or knowing it to be likely that any words, signs or
visible representations containing such instigation shall thereby
be communicated directly or indirectly to any person or class
of persons, in any manner whatsoever, shall be punishable
with imprisonment which may extend to six months, or with
fine, extending to Rs. 250, or with both."
The appellant, who was prosecuted under the section for delivering speeches instigating cultivators not to pay enhanced irrigation
rates to the Government, applied to the High Court for a writ of
habeas corpus on the ground, amongst others, that the said section
was inconsistent with Art. 19(1) (a) of the Constitution and as
such void. The High Court decided in favour of the appellant
and he was released. The State appealed to this Court and the
question for determination was whether the impugned section
embodied reasonable restrictions in the interests of public order
and was thus protected by Art. 19(2) of the Constitution.
Held, that even though in a comprehensive sense all the
grounds specified in Art. 19(2) of the Constitut.ion on which any
reasonable restrictions on the right fo freedom of speech must be
based can be brought under the general head "public order", that
expression, inserted into the Article by the Constitution (First
Amendment) 'Act, 1951, must be demarcated from the other
grounds and ordinarily read in an exclusive sense to mean public
peace, safety and tranquility in contradistinction to national
upheavals, such as revolution, civil strife and war, affecting the
security of the State.
Ramesh Thappar v. The State of Madras (1950) S.C.R. 594,
Brij Bhushan v. fThe State of Delhi. (1950) S.C.R. 605, The State
of Bihar v. Shailabala Devi. (1952) S.C.R. 654 and Cantewell v.
Connecticut. (1940) 310 U.S. 296, discussed.
I960
January 2c.
822
SUPREME COUR'f REPORTS (1960(2)]
i960
It is \vcll settled by decisions of this Court that in a restriction in order to be reasonable must have a reasonable relation to
The Superintendent, the object the Legislation has in view and must not go beyond it .
. Central Prison,
Restrictions, therefore, meant to be in the interest of public
Fatehgarh
order 'vhich have no proximate relationship or nexus with it
v.
but can be only remotely or hypothetically connected with it,
Ra1n .lfanohar cannot be reasonable within the meaning of Art. 19(2) of the
Lohia
Constitution.
Rex v. Basudcva, A.I.R. (r950) F.C. 67, applied.
Ramji Lal Modi v. The State of U.P. (r957) S.C.R. 860 and
Virendra v. The State of Pttnjab, (r958) S.C.R. 308, explained.
So judged, it cannot be said that the acts prohibited under
the wide and sweeping provisions of s. 3 of the Act can have any
proximate or even foreseeable connection with public order.sought
to be protected by it, and, consequently, that section, being
violative of the right to freedom of speech guaranteed by
Art. 19(1) (a) of the Constitution, must be struck down as
'
unconstitutional.
It would be incorrect to argue that since instigation by a
single individual not to pay taxes might ultimately lead to a
revolution resulting in distruction of public order, that instigation must have a proximate connection with public order. No
fundamental rights can be restricted on such hypothetical and
imaginary consideration.
Nor is it possible to accept the argument that in a democratic set up there can be no scope for agitational approach or
that any instigation to break a bad law must by itself constitute
a breach of public order, for to do so without obvious limitations
would be to destroy the right to freed-Om of speech on which
democracy is founded.
It is not possible to apply the doctrine of severability relating to fundamental rights as enunciated by this Court to the
provisions of_ the impugned section, since it is not possible to
precisely determine whether the various categories of instigation
mentioned therein fall within or without the constitutionally
permissible limits of legislation and separate the valid parts from
the invalid.
R'.M.D. Chamarbaugwalla'v. The Union of India (r957) S.C.R.
930, explained and distinguished.
Ramesh Thappar v. The State of Madras (r950) S.C.R. 594
and Chintaman Rao v. The State of Madhya Pradesh. (r950) S.C.R.
7 59, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 76 of 1956.
Appeal from the judgment and order dated August
27, 1954, of the Allahabad High Court in Criminal
M.isc. Writ No. 20 of 1954.
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S.O.R.
SUPREME COURT REPORTS
823
K. L. Misra, Advocate-General for the State of Uttar
Ig6o
Pradesh. G. C. Mathur and 0. P. Lal, for the appel-Th 5 -. d
1 t
e uperinten ent,
an S.
Central Prison
N. S. Bindra, for the respondent.
Fatehgarh
v.
1960. January 21.
The Judgment of the Court
Ram Manohar
was delivered by
Lohia
SUBBA RAO J.-This appeal raises the question of
Subba Rao J.
interpretation of the words "in the interest of public
-order" in Art. 19(2) of the Constitution.
The facts are not in, dispute and they lie in a small
compass. The respondent, Dr. Ram Manohar Lohia,
is . the General Secretary of the Socialist Party of
India. The U. P. Government enhanced the irrigation
rates for water supplied from canals to cultivators.
The party to which the respondent belongs resolved
to start an agitation against the said enhancement
for the alleged reason that it placed an unbearable
burden upon the cultivators.
Pursuant to the policy
of his party, the respondent visited Farrukhabad and
addressed two public meetings wherein he made
speeches instigating the audience not to pay enhanced
irrigation rates to the Government. On July 4, 1954,
at 10 p.m. he was arrested and produced before the
City Magistrate, Farrukhabad, who remanded him
for two days. After investigation, the Station officer,
Kaimganj, filed a charge-sheet against the respondent
before Sri P.R. Gupta, a Judicial Officer at Farrukhabad. On July 6, 1954, the Magistrate went to the
jail to try the case against the respondent, but the
latter took objection to the trial being held in the jail
premises. When the Magistrate insisted upon proceeding with the trial, the respondent
obtained an
adjournment on the ground that he would like to
move the High Court for transfer of the case from
the file of the said Magistrate. Thereafter the
respondent filed a petition before the High Court for
a writ of habeas corpus on the ground, among others,
thats. 3 of the U. P. Special Powers Act (Act No. XIV
of 1932), 1932, (hereinafter called the Act) was void
under the Constitution.
824
SUPREME COURT REPORTS [196012))
r960
In the first instance the petition came up for
--
disposal before a division bench of the High Court at
The Supnintcndenl, All h b d
· t"
f D
·
d Ch t
d"
Central Prison
a a a
COilSIS Ill g
0 '
esa1
an
a urve I,
Fatehgarh
JJ. Elaborate arguments were addressed before them
v.
covering a wide field.
The learned Judges delivered
Ram lVlanohar differing judgments expressing their views on the
Lohia
main points raised before them. ThPy referred the
Subba Rao J. matter to the Chief Justice for obtaining the opinion
of a ·third Judge on the following two points :
"(i) Was the provision of s. 3 of the U. P. Special
Powers Act of 1932 making it penal for a person by
spoken words to instigate a class of persons not to
pay dues recoverable as arrears of land revenue,
inconsistent with Art. 19(l)(a} of the Constitution
on the 26th of January, 1950?" and "(ii) if so, was
it in the interests of public order ? ". The petition
was placed before Agarwala, J., as a third Judge,
who agreeing with Desai, J., gave the following
answers to the questions referred to him :
Question No. (i). "The provision of section 3 of
the U. P. Special Powers Act, 1932, making it penal
for a person by spoken words to instigate a class of
persons not to pay dues recoverable as arrears of
land revenue, was inconsistent with Article 19(1)(a)
of the Constitution on the 26th ,January, 1950."
Question No. (ii). "The restrictions imposed by
section 3 of the U. P. Special Powers Act, 1932,
were not in the interests of public order."
In the usual course the matter was placed before
the two learned Judges who first heard the case and
they, on the basis of the majority view, allowed the
petition and directed the respondent to be released.
The State has preferred the present appeal against the
said order of the High Court.
The learned Advocate General, appearing for the
appellant, stated before us that he did not propose to
canvass the correctness of the majority view on one
of the important points raised in the case, namely,
that the effect of the passing of the Act did not ipso
facto deprive a citizen of his freedom of speech
guaranteed under Art. 19(1) (a) of the Constitution
and its validity should be tested by the provisions
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S.C.R.
SUPREME COURT REPORTS
825
of Art. 19(2) thereof.
He did not concede the
z96o
validity of the finding in this regard but assumed Th 5 P-. 1 d 1
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h
f h'
N h'
e u erin en en,
its correctness .tOl' t
~ purpose o t IS case.
ot mg Central Prison
further, therefore, need be mentioned on this point.
Fatehgarh
The gist of the argument of the learned Advocate
v.
General may be stated thus : The legislature can Ram Manohar
Lohia
make laws placing reasonable restrictions on the
rights of a citizen to freedom of speech and expression
Subba Rao J.
in the interests of public order among other grounds.
The words "in the interests of public order" are
wider in connotation than the · words " for the
maintenance of public order". Laws are rules made
by the legislature for the governance of the people in
the State which they are bound to obey, and they are
enacted to keep public peace and order. The avowed
. object of s. 3 of the Act was to prevent persons from
instigating others to break the laws imposing a
liability upon a person or class of persons to pay
taxes and other dues to the State, any authority or to
any land-owner. The impugned section was enacted
in the interests of public order and therefore the
section was protected by Art. 19(2) of the Constitution. The learned Advocate General pointed out that
the object of the State in preferring this appeal was
to obtain the decision of this Court on the question
of constitutional validity of s. 3 of the Act and not to
pursue the matter against Dr. Lohia.
The respondent was not present at the time .the
appeal was heard and was not represented by an
advocate. As the question raised was an important
one, we requested Mr. N. S. Bindra to assist the
Court, and he kindly agreed to do so. He supported
the majority view of the High Court. We record our
thanks for his assistance.
At the outset it would not be out of place to notice
briefly the history of the Act. The Act was originally
passed in the year 1932 during the British rule. In
an attempt to offset the campaign of non-payment of
taxes and other forms of agitation resorted to by the
Congress Party, originally it was put on the. statute
book for one year; but in 1940 when the State was
under the " Governor's rule ", the Act was made
826
SUPREME COURT REPORTS [1960(2)]
z960
permanent. Under the Act, ss. 1 and 2 came into
-
effect immediately on the passing of the Act and
The' 5"1P'1"P·nt'.nd,nt, s. 1(2) enabled the Government by notification to
en ra
nson
d
ll
f
h
. .
.
Fatehgarh
exten
a
or any o t e remammg sectrons to any
v.
district or to any part of a district in the United
Ram Manohar Provinces. After the Constitution, the Act was not
Lohia
repealed but was allowed to continue, with necessary
adaptations, in the statue book. Between April and
Subba Rao f.
June, 1954, the State Government extended the
prov1s10ns of the Act to 33 districts including
:Farrukhabad district.
Now let us look at the provisions of the Act to
ascertain its scope and field of operation. The preamble discloses that it was enacted in 1932 to make
provision against and to take powers to deal with
instigation to the illegal refusal of the payment of
certain liablities and s. 2 defines "liablity " to mean
"land revenue or any sum recoverable as arrears
of land revenue or any tax, rate, cess or other dues or
amount payable to Government or to any local
authority, . or rent of agricultural land or anything
recoverable as arrears of or along with such rent ".
Section 3 prescribes the punishment for instigation to
the non-payment of a liability. As the argument
centres round this section, it will be convenient to
read the same :
Section 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
defor payment of any liability, and whoever does
any act, with intent or knowing it to be likely that
any words, signs or visible representations containing auch instigation shall thereby be communicated directly or indirectly to any person or class
of persons, in any manner whatsoever, shall be
punishable with imprisonment which may extend
to six months, or with fine, extending to Rs. 250, or
with both."
Section 4 says that any person to whom an arrear of
liability is due may apply to the Collector to realize
it, and the Collector is authorized to realize the same
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S.C.R.
SUPREME COURT REPORTS
827
as an arrear of land revenue.
The impugned section
z96o
may be dissected into the following components :
-. d
·
h
d
· h
k
·
The Superinten ent,
• (1) w oever by wor , eit er spo en or written, or Central Prison
by signs or by visible representations or otherwise,
Fatehgarh
(ii) instigates, (iii) expressly or by implication,
v.
(iv) any person or class of persons, (v) not to pay Ram Manohar
any liability, (vi) to defer payment of any liability,
Lohia
(vii) does an act with intent that any words etc. shall
Subba Rao J.
be communicated to any person or class of persons,
(viii) with the knowledge that it is likely that such
words etc. shall be communicated to any person or
class of persons, (ix) such communication may be made
directly, or indirectly and (x) shall be punished with
imprisonment or with fine or with both. Under this
section a wide net has been cast to catch in a variety
of acts of instigation ranging from friendly advice to
a systematic propaganda not to pay or to defer
payment of liability to Government, any authority or
to any person to whom rent is payable in respect
of agricultural land. The meaning of this section,
read along with ss. 2 and 4, can be ascertained more
clearly by illustration than by definition.
(1) A
instigates B not to pay any liability to Government,
any authority or to any land owner; (2) A instigates
B to defer payment of any liability to Government,
any authority or landlord; (3) A instigates a class
of persons to do the same; (4) A may do any one of
the foregoing things not only by word, but also by
signs, visible representations or otherwise; (5) A may
do any one of the things bona fide either to get the
claim decided in a Court oflaw or to gain time to get
the law changed; (6) A may instigate B not to pay
any amount due to Government or to any authority,
but the said amount can be recovered by the authority
concerned as arrears of land revenue; (7) A may tell
C with intention or with knowledge that the said
instigation may be communicated to B so that he
may not pay; (8) any statement by A to C may
imply such instigation. In its wide amplitude the
section takes in the innocent and the guilty persons,
bona fide and mala fide advice, individuals and class,
abstention from payment and deferment of payment,
828
SUPREME COURT REPORTS [1960 (2)]
z96o
expressed or implied instigation, indirect or direct
Th S P-.
1 d 1 instigation,. liability due not only to Government
euerinenen,
.
Central Prison
but to any authority or landholder. In short, no
Fatehgarh
person, whether legal adviser or a friend or a wellv.
wisher of a person instigated can escape the tentacles
Ram Manohar of this section, though in fact the rent due has
Lohia
been collected through coercive process or otherwise.
Subba Rao J.
We shall now proceed to consider the constitutional
validity of this section. The material portions of
the relevant provisions of the Constitution may
now be read:
Article 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 State from making any law, in so far as such
law imposes reasonable restrictions on the exercise
of the right conferred by the said sub-clause in the
interests of the security of the State, friendly
relations with foreign States," public order, decency
or morality, or in relation to contempt of court,
defamation or incitement to an offence."
Clause (2) of Art. 19 was amended by the Constitution
(First Amendment) Act, 1951. By this amendment
several new grounds of restrictions upon the freedom
of speech have been introduced, such as friendly
relations with foreign
States, public order and
incitement to an offence. It is self evident and
common place that freedom of speech is one of the
bulwarks of a democratic form of Government. It is
equally obvious that freedom of speech can only
thrive in an orderly society. Clause (2) of Art. 19,
therefore, does not affect the operation of any
existing law or prevent the State from making any
law in so far as such law imposes reasonable restrictions on the exercise of the right of freedom of speech
in the interest of public order, among others. To
sustain the existing law or a new law made by the
State under cl. (2) of Art. 19, so far as it is relevant
to the present enquiry, two conditions ehould be
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S.C.R.
SUPREME COURT REPORTS
829
complied with, viz., (i) the restrlctions imposed must
i96o
be reasonable; and (ii) they should be in the interests Th 5 P . 1 d
1
.
d
B ,,
"d
h
f h
e u crin en en.,
of public or er.
e1ore we cons1 er t e scope o t e
Central Prison
words of limitation, "reasonable restrictions" and
Fatehgarh
"in the interests of", it is necessary to ascertain the
v.
true meaning of the expression "public order" in the
Ram Manohar
said clause. The expression " public order" has
Lohia
a very wide connotation. Order is the basic need
Subba Rao J.
in any organised society. It implies the orderly state
of society or community in which citizens can
peacefully pursue their normal activities of life.· In
the words of an eminent Judge of the Supreme Court
of America "the essential rights are subject to the
elementary need for order without which the
guarantee of those rights would be a mockery". The
expression has not been defined in the Constitution,
but it occurs in List II of its Seventh Schedule and
is also inserted by the Constitution (First Amendment)
Act, 1951 in cl. (2) of Art. 19.
The sense in which it
is used in Art. 19 can only be appreciated by ascertaining how the Article was construed before it was
inserted therein and what was the defect to remedy
which the Parliament inserted the same by the
said amendment. The impact of cl. (2) of Art. 19 on
Art. 19(l)(a) before the said amendment was subject
to judicial scrutiny by this Court in Ramesh Thappar
v. The State of Madras( 1).
There the Government of
Madras, in exercise of their powers under s. 9(1-A) of
the Madras Maintenance of Public Order Act, 1949,
purported to issue an order whereby they imposed
a ban upon the entry and circulation of the journal
called the "Cross Roads" in that State.
The
petitioner therein contended that the said order
contravened his fundamental right to freedom of
· speech and expression. At the time when that order
was issued the expression "public order " was not in
Art. 19(2) of the Constitution; but the words " the
security of the State " were there. In considering
whether the impugned Act was made in the interests
of security of the State, Patanjali Sastri, J., as he
then was, after citing the observation of Stephen
in his Criminal Law of England, states:
(1) [19soJ s-.c.R. 5,94, 600, 601, 602.
The Superintendent.
Central Prison
Fatehgarh
v.
Ram Manohar
Lohia
Subba Rao ].
830
SUPREME COURT REPORTS [1960 (2)]
"Though all these offences thus involve disturbances of public tranquillity and are in theory
offences against public order, the difference between
them being only a difference of degree, yet for the
purpose of grading the punishment to be inflicted in
respect of them they may be classified into different
minor categories as has been done by the Indian
Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation
imposing restrictions on the fundamental rights
enumerated in article 19 (1), has placed in a distinct
category those offences against public order which
aim at undermining the security of the State or
overthrowing it, and made their prevention the sole
justification for legislative abridgement of freedom
of speech and expression, that is to say, nothing less
than endangering the foundations of the State or
threatening its overthrow could justify curtailment
of the rights to freedom of speech and expression ......... ''.
The learned Judge continued to state:
"The Constitution thus requires a line to be
drawn in the field of public order or tranquillity
marking off, may be, roughly, the boundary between
those serious and aggravated forms of public disorder which are calculated to endanger the security
of the State and the relatively minor breaches of the
peace of a purely local significance, treating for this
purpose differences in degree as if they were
differences in kind."
The learned Judge proceeded further to state:
"\Ve are therefore of opinion that unless a law
restricting freedom of speech and expression is
directed solely against the undermining of the
security of the State or the overthrow of it, such
law cannot fall within the reservation under clause
(2) of article 19, although the restrictions which it
seeks to impose may have been conceived generally
in the interests of public order."
This decision establishes two propositions, viz.,
(i) maintenance of public order is equated with maintenance of public tranquillity;. and (ii) the offences against
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S.C.R.
SUPREME COURT RE.PORTS
831
public order are divided into two categories, viz., (a)
1960
major offences affecting the security of the State, and T'
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(b)
.
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f
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l
l
rie Superintendent,
. ~mor ouence.s mvo v:rng
.~eac o pure y oca
Central Prison
s1gmficance. This Court m BriJ Bhushan v. The State
Fatehgarh
of Delhi (1 ) followed the earlier decision in the context
v.
ofs. 7(1) (c) of the EastPunjabPublicSafety Act, 1949.
Ram Manohar
Fazl Ali, J., in his dissenting judgment gave the
Lahia
expression "public order" a wider meaning than that
Subba Rao J.
given by the majority view.
The learned Judge
observed at p. 612 thl:ls :
"·when we approach the m,atter 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 or 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."
This observation also indicates that "public order" is
equated with public peace and safety. Presumably in
an attempt to get over the effect of these two decisions, the expression "public order " was inserted in
Art. 19 (2) of the Constitution by the Constitution
(First Amendment) Act, 1951, with a view to bring in
offences involving breach of ·purely local significance
within the scope of permissible restrictions under
cl. (2) of Art. 19. After the said amendment, this
Court explained the scope of Ramesh Thappar' s Gase (1)
in The State of Bihar v. Shailabala Devi (2). That case
was concerned with the constitutional validity of
s. 4 (1) (a) of the Indian Press (Emergency Powers)
Act, 1931. It deals with the words or signs or visible
representations which incite to or encourage, or tend
to incite to or encourage the commission of any offence
of murder or any cognizable. offence involving violence.
Mahajan, J., as he then was, observed at p. 660.:
"The deduction that a person would be free to
incite to murder or other cognizable offence through
the press with impunity drawn from our decision in
( l) [1950] S.C R . 605.
{2) (1952] S.C.R. 654.
1o6
The Superintendent,
Central Prison
Fatehgarh
v.
Ran1 1\1 anohar
Lohia
Subba _Rao J.
832
SUPREME COURT REPORTS [1960 (2)1
Ramesh ThfiLppar's case could easily have been
avoided as it was avoided by Shearer J., who in
very emphatic terms said as follows :
"I have read and re-read the judgments of the
Supreme Court, and I can find nothing in them
myself which bear directly on the point at issue,
and leads me to think that, in their opinion, a
restriction of this kind is no longer permissible. "
The validity of that section came up for consideration
after the Constitution (First Amendment) Act, 1951,
which was expressly made retrospective, and therefore
the said section clearly fell within the ambit of the
words "in the interest of public order". That apart
the observations of Mahajan, J., as he then was,
indicate that even without the amendment that section
would have been good inasmuch as it aimed to prevent
incitement to murder.
The words "public order " were also understood in
America and England as offences against public safety
or public peace. The Supreme Court of America
observed in Cantewell v. Connecticut (1) thus:
"The offence known as breach of the peace
embraces a great variety of conduct destroying or
menacing public order and tranquillity. It includes
not only violent acts and words likely to produce
violence in others. No one would have the hardihood to suggest that the principle of freedom of
speech sanctions incitement to riot ...... When clear
and present :danger of riot, disorder, interference
with traffic upon the public streets, or other
immediate threat to public safety, peace, or order
appears, the power of the State to pre\•ent or punish
is obvious. "
The American decisions sanctioned a variety of restrictions on the freedom of speech in the interests of
public order. They cover the entire gamut of restrictions that 011,n be imposed under different heads in
Art. 19(2) of our Constitution. The following summary
of some of the cases of the Supreme Court of America
given in a well-known book on Constitutional Law
illustrates the range of categories of cases covering
(I) (1940) 310 US. 296, 308.
•
--'
-
-
~· 1fS.C.R.
SUPREME COURT REPORTS
833
that expression. "In the interests of public order, the
i960
State may prohibit and punish the causing of ' loud
and raucous noise' in streets and public places by The Superintenden',
means of sound amplifying instruments, regulate the Central Prison
hours and place of public discussion, and the use of
Fat~garh
the public streets for the purpose of exercising freedom
Ram Manoha•
of speech ; provide for the expulsion of hecklers from
Lakia
meetings and assemblies, punish utterances tendirig to
incite an immediate breach of the peace or riot as
Subba Rao J.
distinguished from utterances causing mere 'public
inconvenience, annoyance or unrest'." In England
also Acts like Public Order Act, 1936, Theatres Act,
1843 were passed: the former making it an offence to
use threatening, abusive or insulting words or behaviour in any public place or at any public meeting with
intent to provoke a breach of the peace or whereby a
breach of the peace is likely to be caused, and the
latter was enacted to authorise the Lord Chamberlain
to prohibit any stage play whenever he thought its
public performance would militate against good
manners, decorum and the preservation of the public
peace. The reason underlying all the decisions is that
if the freedom of speech was not restricted in the
manner the relevant Acts did, public safety and
tranquillity in the State would be affected.
But in India under Art. 19(2) this wide concept of
"public order" is split up under different heads. It
enables the imposition of reasonable restrictions on
the exercise of the right to freedom of speech and
expression in the interests of the security of the State,
friendly relations with foreign States, public order, .
decency or morality, or in relation to contempt of
court, defamation or incitement to an offence.
All
the grounds mentioned therein can be brought under
the general head "public order" in its most comprehensive sense. But the juxtaposition of the different
grounds indicates that, though sometimes they tend to'
overlap, they must be ordinarily intended to exclude
each other. " .Public order" is therefore something
which is demarcated from the others. In that limited
sense, particularly in view of the history of the
amendment, it can be postulated th.a.t "public order''
834
SUPREME COURT REPORTS [1960(2)]
r96o
is synonymous with public peace, safety and tranquil-,,
Th
-.
Jity.
e Superintendent,
•
.
•
.
Central p,;son
The next questron IS what do the words "rnterest
Fatehgarh ' of public order" mean? The learned Advocate
v.
General contends that the phrase "in the interest
Ram Manohar uf public order" is of a wider connotation than the
Loln'.a
words "for the maintenance of public order" and,
Subba Rao J.
therefore, any breach of law which may have the
tendency, however remote, to disturb the public order
would be covered by the said phrase. Support is
sought to be drawn for this wide proposition from
the judgment of this Court in Ramji Lal Modi v. The
State of U.P. (1 ). It is not necessary to state the
facts of that case, as reliance is placed only on the
observations of Das, C.J., at p. 865, which read:
"It will be noticed that the language employed in
the amended clause is "in the interests of" and not
"for the maintenance of'. As one of us pointed
out in Debi Saran v. The State of Bihar ('), the
expression "in the interests of" makes the ambit of
protection very wide.
A law may not have been
designed to directly maintain public order and yet
it may have been enacted in the interests of public
order."
The learned Chief Justice again in V irendra v. The
State of Punjab(') observed, at p. 317, much to the
sctme effect :
"As has been explained by this Court in Ramji Lal
Modi v. The State of U.P. (1), the words "in the interests of" are words of great amplitude and are much
wider than the words "for the maintenance of."
The expression "in the interests of" makes the
ambit of the· protection very wide, for a law may
not have been designed to directly maintain the
public order or to directly protect the general public
against any particular evil and yet it may have
been enacted "in the interests of" the public order
or the general public as the case may be."
We do not understand the observations of the Chief
Justice to mean that any remote or fanciful conneo.
tion between the i~pugned Aot and the public order
(I) [r957] S.C,R. 860.
·
.
(2) A.LR (I954) Pat 254.
.
(3) [1958] S.C.R. 308,
·
...
.,..
-
S.C.R.
SUPREME COURT REPORTS
835
would be sufficient to sustain its validity. The learned
r960
Chief Justice was only making a distinction between TheSuper·ntendent
an Act which expressly and directly purported to Central 'Prison '
maintain public order and one which did not expressly
Fatehgrah
state the said purpose but left it to be implied therev.
from; and between an Act that directly maintained Ram Manoha•
public order and that indirectly brought about the
Lohia
same result. The distinction does not ignore the
necessity for intimate connection between the Act and
the public order sought to be 'maintained by the Act.
Apart from the said phrase, another limitation in
the clause, namely, that the restrictions shall be
reasonable, brings about the same result. The word
"reasonable" has been defined by this Court in more
than one decision. It has been held that in order to
be reasonable, "restrictions must have reasonable
relation to the object which the legislation seeks to
achieve and must not go in excess of that object".
The restriction made "in the interests of public order"
must also have reasonable relation to the object to
be achieved, i.e., the public order. If the restriction
has no proximate relationship to the achievement of·
public order, it cannot be said that the restriction is
a reasonable restriction within the meaning of the .
said clause. A full bench decision of the Federal
Court in Rex v. Basudeva (1) contains some observations which give considerable assistance to construe
the words. In that case, the appellant was detained
in pursuance of the order ma.de by the Government
of U.P. under the U.P. Prevention of Black-Marketing
(Temporary Powers) Act, 1947. The question was
whether the preventive detention provided for in
s. 3(1) (i) of the said Act was preventive detention for
reasons connected with the maintenance of public
order. The argument in that case ran on the same
lines as in the present case. The learned Advocate
General there urged that habitual black-marketing in
essential commodities was bound sooner or later to
cause a dislocation of the machinery of controlled
distribution which, in turn, might lead to breaches of
tpe peace and that; ~herefore, det.ention with a view
to ;prevent such black-marketing was covered by th~
\I) A.I.R. (l950) F,C, 67
Subba Rao J.
836
SUPREME COURT REPORTS [1960(2)]
r96o
entry. Answering that argument, Patanjali Sastri, J.,
Th S P-. d 1 as he then was, pointed out, at p. 69:
e u erinten en ,
Central Prison
"Activities such as these are so remote in the
Fatehgrah
chain of relation to the maintenance of public order
v.
that preventive detention on account of them
Ram Manohar
cannot, in our opinion, fall within the purview of
Lohia
Entry I of List IL ............ The connection conSubba Rao J.
templated must, in our view, be real and proximate,
not far-fetched or problematical."
The decision, in our view, lays down the correct test.
The limitation imposed in the interests of public order
to be a reasonable restriction, should be one which
has a proximate connection or nexus with public
order, but not one far-fetched, hypothetical or problematical or too remote in the chain of its relation with
the public order.
We shall now test the impugned section, having
regard to. the aforesaid principles. Have the acts
prohibited under s. 3 any proximate connection with
public safety or tranquility ? We have already
analysed the provisions of s. 3 of the Act. In an
·attempt to indicate its wide sweep, we pointed out
that any instigation by word or visible representation
not to pay or defer payment of any exaction or even
contractual dues to Government, authority O< a landowner is made an offence. Even innocuous speeches
are prohibited by threat of punishment. There is no
proximate or even forseeable connection between such
instigation and the public order sought to be protected
under this section.
We cannet accept the argument
of the learned Advocate General that instigation of a
single individual not to pay tax or dues is a spark
which may in the long run ignite a revolutionary
movement destroying public order. We can only say
that fundamental rights cannot be controlled on such
hypothetical and imaginary considerations. It is said
that in a democratic set up there is no scope for
agitational approach and that if a law is bad the
only course is to get it modified by democratic process
and that any instigation to break the law is in itself
a disturbance of the public order. If this argument
without obvious Hmitations be accepted, it would
-
-
S.C.R.
SUPREME COURT REPORTS
837
destroy the right to freedom of.speech whicb is the
z96o
very foundation of democratic way of life. Unless Th c; .
. . a 1
there is a proximate connection between the instiga-
~.~;~~";:1:0:;•'
tion and the public order, the restriction, in our view,
Fatehgarh
is neither reasonable nor is it in the interest of public
v.
order. In this view, we must strike down s. 3 of the
Ram Manohar
Act as infringing the fundamental right guaranteed
Loliia
under Art. 19(l)(a) of the Constitution.
The learned Advocate General then contended that
Subba Rao .f.
the section is severable and that if so severed, the
section may be made to function within the limited
field that stands the test of Art. 19(2) of the Constitution. He asks us to read the section as follows :
"Whoever, by word, either spoken or written, or
by signs or by visible representations, or otherwise,
instigates, expressly or by implication, any class of
persons not to pay or to defer payment of any
liability, and whoever does any act, with intent or
knowing it to be likely that any words, signs or
visible representations containing such instigation
shall thereby be communicated directly or indirectly
to any class of persons, in any manner whatsoever,
shall be punishable with imprisonment which may
extend to six months, or with fine,. extending to
Rs. 250, or with both."
By so doing he argues that in;tigation of a class of
persons only is made liable and thereby the section is
rid of the vice of unconstitutionality.
The doctrine of severability vis-a-vis the. fundamental rights is sought to be supported on the basis
of the wording of Art. 13(1) of the Constitution.
Under that Article laws, in so far as they are inconsistent with the prov~sions of Part III, are void
only to the extent of such inconsistency. But this
implies that consistent and inconsistent parts of a law
are severable. This doctrine in its relation to fundamental rights was considered by this Court in three
decisions. In Ramesh Thapper's case (1) such an argument has been repelled by this Court. Patanjali
Sastri, J., as he then was, stated the legal position
thus at p. 603 :
(r) (1950] S.C.R. 594, 600, 601, 602.
1960
The Superintendent,
Central Prison
Fatehgarh
v.
Ram JVI ano har
Lohia
Subba Rao].
838
SUPREME COURT REPORTS [1960(2)]
"Where a law purports to al'lthoi:ise the imposition of restrictions on a fundamental right in
language wide enough to cover restrictions both
within and without the limits of constitutionally
permissible legislative action affecting such right,
it is not possible to uphold it even so far as it may
be applied within the constitutional limits, as it
is not severable. So long as the possibility of
its being a pp lied for purposes not sanctioned by
the Constitution cannot be ruled out, it must be
held to be wholly unconstitutional and void."
In Ohintaman Rao v. The State of Madhya Pradesh (1),
the same principle ls again restated. Mahajan, J., as
he then was observed at p. 765:
"The law even to the extent that it could be
said to authorize the imposition of restrictions
in regard to agricultural labour cannot be held
valid because the language employed is wide
enough to cover restrictions both within and
without the limits of constitutionally permissible
legislative action affecting the right.