# Urguhar v. Brown (205 U. S. 179.)

- **Citation:** [1950] 1 S.C.R. 594
- **Court:** Supreme Court of India
- **Decided:** 1950-03-01
- **Bench:** Shr1 Har1Lal Kania C. J, SA1Y1D FAZL Au, Patanjali ~Astri, Mehr Chand Mahajan, MuKHERJEA, DAs
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/urguhar-v-brown-205-u-s-179-142
- **Pages:** 12

## Headnote

[1950}
Constitution of India, Art. 19, els. {I) (a) and (2), 32-Application under Art. 32-Preliminary ob1ection-Fundamental right of
freedom
of speech
and expression-Law imposing restrictions for
securing public order and maintenance of public safety-Validity--
Seuerability of Act-Madras Maintenance of Public Order Act
tXXXIll of 1949), s. 9 ( 1-A)-Validity.
Held, by the Full Court (i) (overruling o preliminary objections)
-TJnder the Constitution the Supreme Court is constituted the
protector and guarantor of fundamental rights, and it cannot, con·
sistently with the responsibility so laid upon it, refuse to entertain
applications seeking prota:tion against infringement of such right$,.
although such applications are made to the Court in the first
instance without resort to a High Court having concurrent juris-diction in the matter.
Urguhar v. Brown (205 U. S. 179.)
and Hooney v. Kolohan
(294 U. S. 103) distinguished.
(ii) Freedom of speech and expression includes freedom of
propogation of ideas and that freedom is ensured by the freedom
of circulation.
Ex parte /ackson
(96 U. S. 727) and Lovell v. City of Griffin
(303 U. S. 444) referred to.
Held
per
KANIA
C. J.,
PATANJAL.I
SAsTRJ,
MEHR
CttAND
MAHAJAN,
MuKHERJEA
and
DAs IJ.-(FAzL Au J. dissenting):
(i) Apart from libel, slander etc. unless a law restricting freedom
of speech and expressiofi is
directed solely against the
undermining of the: st:curity of the State or the overthrow of it, such law
cannot fall within the reservation under cl. (2) of the Art. 19 of the
Constitution, although the restrictions \vhich it seeks to impose may
have been conceived generally in the interests of public order. Section 9 0-A) of the Madras Maintenance of Public Order Act, XXXlll
of 1949, which authorises impositions of restrictions for the wider
purpose of securing public safety or the maintenance of public
order falls outside the scope of authorised restrictions under cl. (2)
and is therefore void and unconstitutional; (ii) Where a la\\' purports to authorise the imposition of restrictions on a fundamental
right in langauge wide enough to cover restrictions both within
and without the limits
of constitutionally
permissible
legislative
actiOft. affecting such right, it is not possible to uphold it even so I
far as it may be applied within the constitutional limits, as it is1
not severable. So long as the possibility of its being applied for
purposes
not sanctioned by the Constitution cannot be ruled o~
· S.C.R.
SUPREME- COURT REPORTS
595
it must be held to be
wholly unconstitutional and void. Section
9 (1-A) is therefore wholly unconstitutional and void.
Per FAZL Au J.-Rcstrictions which s. 9 (1-A) authorised
arc within the provisions of cl. (2) of art.
19 of the Constitution
and s. 9 (1-A) is not therefore uncoqstitutional or void. (1)
Brij BhuJhan and Another v. The State (1950) S.C.R. 60)
referred to.
.
.
·ORIGINAL
Ju&Is01c110N:
Petition No. XVI of 1950.
Application under article
32 of the Constitution
for a.
writ of prohibition and
certiorari.
The facts
are
set
out in the judgment.
C. R. Pattabhi Ra1nan, for the petitioner.
K. Rajah Ayyar, Advocate-Gene;al of Madras, (Ganapathi Ayyar, with him) fQr the opposite party.
1950. May 26. The Judgment of Kania C. J., Mehr
Chand ~1ahajan, Mukherjea and
Das JJ. Was delivered
by Patanjali Sastri, J. Fazl Ali. J. delivered a separate
judgment.
PATANJALI
SASTRI J.-The petitioner is
the printer,
publisher and
editor of
a recently
started weekly
journal in English called Cross. Roads printed and
published in Bombay.
The Government
of Madras,
the respondents herein, in exercise of their powers
under section 9(1-A) of the Madras Maintenance of
Public Order Act, 1949 (hereinafter referred to as the
impugned Act) purported to issue an order No. MS.
1333 dated 1st March, 1950, whereby they imposed · a
ban upon the entry and circulation of the journal in
that State. The order was published in the Fort St.
George Gazette and the notification ran as follow

## Text

1950
May26.
594
SUPREME COURT REPORTS
ROMESH THAPPAR
I/.
THE STATE OF MADRAS
[SHR1 HAR1LAL KANIA C. J., SA1Y1D FAZL Au,
PATANJALI ~ASTRI, MEHR CHAND MAHAJAN,
MuKHERJEA and DAs JJ.]
[1950}
Constitution of India, Art. 19, els. {I) (a) and (2), 32-Application under Art. 32-Preliminary ob1ection-Fundamental right of
freedom
of speech
and expression-Law imposing restrictions for
securing public order and maintenance of public safety-Validity--
Seuerability of Act-Madras Maintenance of Public Order Act
tXXXIll of 1949), s. 9 ( 1-A)-Validity.
Held, by the Full Court (i) (overruling o preliminary objections)
-TJnder the Constitution the Supreme Court is constituted the
protector and guarantor of fundamental rights, and it cannot, con·
sistently with the responsibility so laid upon it, refuse to entertain
applications seeking prota:tion against infringement of such right$,.
although such applications are made to the Court in the first
instance without resort to a High Court having concurrent juris-diction in the matter.
Urguhar v. Brown (205 U. S. 179.)
and Hooney v. Kolohan
(294 U. S. 103) distinguished.
(ii) Freedom of speech and expression includes freedom of
propogation of ideas and that freedom is ensured by the freedom
of circulation.
Ex parte /ackson
(96 U. S. 727) and Lovell v. City of Griffin
(303 U. S. 444) referred to.
Held
per
KANIA
C. J.,
PATANJAL.I
SAsTRJ,
MEHR
CttAND
MAHAJAN,
MuKHERJEA
and
DAs IJ.-(FAzL Au J. dissenting):
(i) Apart from libel, slander etc. unless a law restricting freedom
of speech and expressiofi is
directed solely against the
undermining of the: st:curity of the State or the overthrow of it, such law
cannot fall within the reservation under cl. (2) of the Art. 19 of the
Constitution, although the restrictions \vhich it seeks to impose may
have been conceived generally in the interests of public order. Section 9 0-A) of the Madras Maintenance of Public Order Act, XXXlll
of 1949, which authorises impositions of restrictions for the wider
purpose of securing public safety or the maintenance of public
order falls outside the scope of authorised restrictions under cl. (2)
and is therefore void and unconstitutional; (ii) Where a la\\' purports to authorise the imposition of restrictions on a fundamental
right in langauge wide enough to cover restrictions both within
and without the limits
of constitutionally
permissible
legislative
actiOft. affecting such right, it is not possible to uphold it even so I
far as it may be applied within the constitutional limits, as it is1
not severable. So long as the possibility of its being applied for
purposes
not sanctioned by the Constitution cannot be ruled o~
· S.C.R.
SUPREME- COURT REPORTS
595
it must be held to be
wholly unconstitutional and void. Section
9 (1-A) is therefore wholly unconstitutional and void.
Per FAZL Au J.-Rcstrictions which s. 9 (1-A) authorised
arc within the provisions of cl. (2) of art.
19 of the Constitution
and s. 9 (1-A) is not therefore uncoqstitutional or void. (1)
Brij BhuJhan and Another v. The State (1950) S.C.R. 60)
referred to.
.
.
·ORIGINAL
Ju&Is01c110N:
Petition No. XVI of 1950.
Application under article
32 of the Constitution
for a.
writ of prohibition and
certiorari.
The facts
are
set
out in the judgment.
C. R. Pattabhi Ra1nan, for the petitioner.
K. Rajah Ayyar, Advocate-Gene;al of Madras, (Ganapathi Ayyar, with him) fQr the opposite party.
1950. May 26. The Judgment of Kania C. J., Mehr
Chand ~1ahajan, Mukherjea and
Das JJ. Was delivered
by Patanjali Sastri, J. Fazl Ali. J. delivered a separate
judgment.
PATANJALI
SASTRI J.-The petitioner is
the printer,
publisher and
editor of
a recently
started weekly
journal in English called Cross. Roads printed and
published in Bombay.
The Government
of Madras,
the respondents herein, in exercise of their powers
under section 9(1-A) of the Madras Maintenance of
Public Order Act, 1949 (hereinafter referred to as the
impugned Act) purported to issue an order No. MS.
1333 dated 1st March, 1950, whereby they imposed · a
ban upon the entry and circulation of the journal in
that State. The order was published in the Fort St.
George Gazette and the notification ran as follows :-
"In exercise of the powers conferred by section 9
(1-A) of the Madras Maintenance of Public Order, Act,
1949 (Madras Act XXlII of 1949)
His Excellency
the
Governor of Madras, being satisfied that for the purpose
of securring the public safety and the maintenance of
puolic order, it is necessary so to do, hereby
prohibits,
with effect on and from the, date of publication of this
order in the Fort St. George Gazette the entry into or
the circulation, sale or distribution in the State of Madras
or any part thereof of the newspaper entitled Cross
Roads an English weekly published at Bombay."
The petitioner cl;iims that the said
order contravenes
the fundamental right of the petitioner to freedom of
. (1) Sec the .headnote to Brij Bhus.%an v. The Stale of Delhi, p. 60~ Infra.
6-5 S. C. India 1N.Dl 58
1950
Ramesh Thappar.
v.
The Stat• a}
Madras.
Patanjali
Sast1iJ.
1950
R...,sh 1'happar
v.
T "- Slau of
Madras.
Palanjali
Sastri].
596
SUPREME COURT REPORTS
l1950]
speech and expression conferred on him by article 19
( 1) (a) of the Constitution and he challenges the validity of section 9 (1-A) of the· impugned Act as being
void und~r article 13 ( 1) of the Constitution by reason
of its
being inconsistent with his fundamental
right
aforesaid.
The Advocate-General of
Madras appearmg
on behalf of the respondents raised a prelimmary
objection,
not indeed to the jurisdiction of this Court to entertain
the application under article 32, but to the petitioner
resorting to this Court directly for such relief in the
first instance. He contended that, as
a matter of
orderly procedure, the petitioner should
first
resort to
the High Court at Madras which under article 226 of
the Constitution has concurrent jurisdiction to deal
with the
matter. He cited
criminal revision
petitions
under
section 435 ot the
Criminal
Procedure
Code,
applications
for
bail
and
applications
for
transfer
under section 24 of the Civil Procedure Code as instances
where,
concurrent
jurisdiction
having
been
given in certain matters to the High Court and the
Court of a lower grade, a rule of practice has been
established
that a party
should proceed
first
to
the
latter Court for relief before resorting to the High
Court. He referred to Emperor v.
Bishes11Jar
Prasad
Sinha( 1 ) where such a rule of practice was enforced in
a criminal revision case, and called
our attention
also
to certain American decisions
Urquhart v.
Brown(')
and
Hooney
v.
Kolohan( ') as
showing that
the
Supreme
Court
of
the
United
States
ordinarily
required· that whatever judicial
remedies·
remained
open to the applicant in
Federal . ancl
State
Courts
should
be
exhausted
before
the
remedy
in
the
Supreme Court-be it
habeas
corpus or certiorariwould be allowed.
We are of opinion that neither the
instances mentioned
by the learned Advocate-General
nor the American decisions referred to by him are
really analogous
to the remedy afforded by article 32 of
the Indian Constitution. That article does not merely
confer power on this Court, as article 226 does on the
(') I. L, R. 56 All. l58.
i'j 20s u. 5. 179.
(') 294 U.S. W
S.C.R.
. SUPREME COURT REPORTS
597
High Courts, to issue certain writs for the enforcement
of the rights conferred by Part III or for any other
purpose, as part of its general jurisdiction.
In that
case it· would
have been
more
appropriately placed
among articles
131 to 139
which define
that jurisdiction. Article 32 provides a "guaranteed" remedy for
the enforcement of those rights, and this remedial right
is itself made a fundamental right by being included in
Part UL This Court is thus constituted
the
protector
and guarantor of fundamental
rights, and it cannot,
consistently with the
responsibility so
laid
upon it,
refuse
to entertain
applications
seeking
protection
again.~t infringements of such rights. No similar provision is to be found in the Constitution of the United
States
and we
do not consider
that the
American
decisions are in point.
Turning now to the merits, there can be no doubt
that freedom of speech and expression includes freedom
of propagation of ideas, and that . freedom is ensurt:d / by
the freedom of circulation.
"Liberty of circulation is
as esscn tia I to that freedom as the liberty of
publication.
Indeed,
without
circulation
the
publication
would be of little value". Ex
parte
fackso11(1 ). Sec
also Lovell v. City of Griffin( 2). It is therefore perfectly clear that the order of the Government of Madras
would be a Yiolation of the petitioner's fundamental
right under article 19(1) (a), unless section 9 (I-A) of
the impugned Act under which it was made is saved
by the reservations mentioned in clause (2) of article 19
w!iich (omitting immaterial words
regarding laws relating to libel, slander, etc., with which we are not concemed in this case) saves the operation of any "existing law in so far as
it relates to any matter which
undermines
the security
of, or tends to overthrow, the
State."
The question
accordingly
arises
whether the
impugned Act, in so far as it purpo:-ts by section 9(1-A)
to authorise the Provincial Government
"for the
purpose of ''ecming the public safety or tlie maintenance
·of public order, to prohibit or regulate the entry into
( 1) 96 u,s. 727.
(') 303 U.S. 444.
1930
Romesh T happar
v.
The Stale of
Madras.
Patanjali
Sastri, J.
1950
Ronush T happar
v.
Tiu State of
Madras.
Patanjali
Sastri, J.
598
SUPREME COURT REPORTS
[ 1950]
or the circulation, sale or distribution in the Province of
Madras or any part thereof of any
document or
class
of documents" is a "law relating. to any matter which
undermines the security of or tends to
overthrow
the
State."
. The impugned
Act
was passed
by the
Provincial
Legislature in exercise of the power conferred upon it by
section 100 of the Government of India Act, 1935, read
with Entry
I of List
II of the Seventh Schedule
to
that
Act,
which
comprises
among
other
matters,
"public order."
Now
"public order" is
an expression
of wide connotation and signifies that state of tranquillity which prevails among titc members of a political
society as a result
of the internal regulations
enforced
by
the
government
which
they
have
established.
Although section 9 (1-A) refers to "securing the public
safety" and
"the
maintenance of
public
order"
as
distinct purposes, it must be taken
that "public safety"
is used as a part of the wider concept of public
order,
for, if public safety were intended to signify any matte1
distinct from and outside the content of the expression "public order," it would not have
been competent
for the Madras
Legislature to
enact the provision
so
far as it relates to public safety. This indeed was
not
disputed
on behalf of the
respondents.
But
it was
urged that the
expression
"public safety" in the
impugned
Act, which is a statute relating
to
law
and order, means the security of the Province, and,
therefore, "the security of the State" within the meaning
of article 19 (2) as "the State" has been defined in
article 12 as including, among other things, the Government and the Legislature of each of the erstwhile Provinces.
Much reliance was placed
in support of this
view on Rex v. Wormwood Scrubbs Prison(')
where it
was held that the phrase "for securing
the public. safety and the defence of the realm" in section
I of the
Defence of the Realm
(Consolidation) Act, 1914, was
not limited to securing the
c~untry against a foreign
foe but included
also protection
against internal
disorder such as a rebellion. The decision is not of
much assistance
to the respondents
as the context
in
(') L.R. [1920] 2 K.B. 305.
S.C.R.
SUPREME COURT REPORTS
599
which the words "public safety" occurred in that Act
showed unmistakably that the security of the State
was the aim in view. Our attention has not been
drawn to any definition of the expression "public
safety," nor does it appear that the words have acquired an.y technical signification as words of art.
"Public safety" ordinarily
means
security
of
the
public or their freedom from danger. In that sense,
anything which tends to prevent dangers to public
health may also be regarded as securing ,public safety .
. The meaning of the expression must,
however,
vary
according to the context. In the classification of offences in the Indian Penal Code, for instance, Chapter XIV
enumerates the "offences affecting the public health,
safety,
convenience,
decency,
and
morals"
and
it
includes rash driving or riding on a public way
(section 279) and rash navigation of a vessel (section 280),
among others, as offences
against public
safety,
while
Chapter VI lists waging war against the Queen (section
121), sedition (section 124-A) etc. as "offences against
the State",
because they are
calculated to
undermine
or affect the security of the State, and Chapter. VIII
defines
"offences
against
the
public
tranquillity"
which include
unlawful assembly (section 141)
rioting
(section
146),
pr~moting enmity
between
classes
(section 153-A), affray (section 159) etc. Although in
the context of a statute
relating
to
law and
order
"securing public safety" may not include the securing
of public health, it may well mean securing the public
against rash driving on a public way and the like,
and
not necessarily the security
of the
State.
It was said
that an enactment which provided for drastic remedies
like preventive detention and ban on newspapers must
be taken to relate to matters affecting
the security
of
the State rather
than trivial offences like rash driving
or an affray.
But whatever ends the impugned Act.
may have been
intended to subserve,
and
whatever
aims its framers may have had in view, its application
and scope cannot, in the absence of limiting words in
the statute itself, be
restricted to those aggravated
forms of prejudicial activity
which
are calculated
to
1950
Romnh T hap/HJ
v.
The S1aJe of
Madras.
PaJanjali
Sastri, J.
1950
Ro""'h Thappar
v.
The Stall of
Madras.
Patanjali
Sastri, J.
600
SUPREME COURT REPORTS
f1950l
endanger the security of the State. Nor is there any
guarantee that those authorised to exercise the powers
under the Act will in using them discriminate between
those who act prejudicially to the security of the
State
and those who do not.
The Government of India
Act, 1935, nowhere
used
the expression "security of the State" though it made
provision under section 57 for dealing with crimes of
violence
intended
to
overthrow
the
Government.
While the administration
of law and order including
the maintenance of public order was placed in charge
of a Minister elected by the people, the Governor was
entrusted
with
the responsibility
of
combating
the
operations of persons who "endangered the peace or
tranquillity of the Province" by committing or attempting "to commit "crimes of violence
intended
to
overthrow
the
Government."'
Similarly,
article
352
of the Constitution empowers the
President to make a·.
Proclamation of Emergency
when
he is satisfied
that
the "security of India or any part of the territory thereof
is thr~atene<l by war or bv external aggression or by
internal
disturbance."
These
provisions
recognise
that disturbance of public
peace
or tranquillity
may
assume such grave proportions as
to threaten the security of the State.
As Stephen in his Criminal Law of England ( 1 )
observes :
"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 defined boundaries. All of them have 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
bv the show and threat of it." Though all these
offences thus involve disturbances of public tranqua.
lity 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
(')Vol. TT, p. 242.
S.C.R.
SUPREME COURT REPORTS
601
the Indian Penal Code. Similarly, the Constitutiop.,
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 lcrs than
endangering
the foundations of the State or
threatening its overthrow could justify curtailment · of the
rights to freedom of speech and expression, while the
right of peaceable assembly
"sub-clause (b )" and
the
right of association "sub-clause ( c)" may
be restricted
under clauses ( 3) and ( 4) of article 19 in the interests
of "public order", which in those clauses includes the
security of the
State.
The
differentiation is also
noticeable in Entry 3 of List Ill (Concurrent List)
of the Seventh Schedule, which refers to the
"security
of a State" and "maintenartce . ·of public order". as.
distinct subjects
of legislation.
Th~ Constit~tio~ 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.
It is also worthy of note that the word "sedition"
which occurred in article ,13 (2) of the Draft Constitution prepared by
the·
Drafting
Committee
was
deleted
before the
article was
finally
passed as
article
19
(2).
In
this
connection it
may
be
recalled that the Federal Court had, in defining sedition
in Niharendtt Dutt
Majumdar v. The
King
Emperor( 1), held that "the acts or words complained of
must either
incite to disorder
or must be such as
to
satisfy reasonable men that that is their intention or
tendency'', but the
Privy
Council
overruled
that
(1) [1912] F.C.R. 38.
1950
llomesh ThaptmT
v.
The Stale oj
Madras.
Patlllijali
Sastri, ].
1950
v.
Tlw S<a1< ef
Matku.
P°'flllia/i
Sanri, ].
602
SUPREME COURT REPORTS
[1950]
decision and emphatically
reaffirmed the view
expressed in Tilak's case( 1 )
to the effect that "the offence
consisted ·in exciting or attempting to excite in
others
certain bad feelings towards
the Government and not
in exciting or attempting
to excite mutiny or rebellion,
or any sort
of actual disturbance, great or small"-·
King Emperor
v.
Sadashiv
Narayan
Bhalerao (').
Deletion
of
the
word
"sedition"
from
the
draft
article
13
(2),
therefore,
shows
that
criticism
of
Government exciting
disaffection
or bad
feelings
towards it is
not to be
regarded as a justifying ground
. for restricting the freedom of expression and of the
press, unless it is such as to undermine the
security of
or tend to overthrow
the
State.
It is also significant
that the corresponding
Irish formula
of
"undermining the public order or the authority of
the State"
[article 40 (6) (i) of the Constitution of Eire, 1937] did
not apparently find favour with the framers of the
Indian Constitution. Thus, very narrow and stringent
limits have been set to permissible legislative abridgement of the right of free speech and expression, and
this was doubtless due to the realisation that
freedom
of speech and of the press lay at the foundation of all
democratic
organisations,
for
without
free
political
discussion no public education, so essential for
the
proper functioning
of the processes of popular government, is pos,ible. A freedom of such amplitude
might
involve
risks
of
abuse.
But the framers
of
the
Constitution may
well
have
reflected,
with Madison
who was "the leading spirit in the preparation of the
First Amendment of
the Federal
Constitution,"
that
"it is better to leave a few of its noxious branches to
their luxuriant growth, than,
by pruning
them
away,
to injure the vigour of those yielding the
proper
fruits": [Quoted in Near v. Mi1111esotta (')].
We are therefore of opinion that unless a law
restricting freedom of speech '11<1 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
( 1) 22 Botn. 112.
(z) L.R. 74 I. . .\. $9.
·') 282 U.S. 607. 717-8
S.C.R.
SUPREME COURT REPORTS
603
restrictions
which it seeks to
impose
may have
been
conceived
generally in the interests of public order. It
follows that section 9 (1-A) which
authorises
imposition of restrictions for the wider purpose of securing
public safety or the maintenance of public
order falls
outside
the
scope
of
authorised
restrictions
under
clause (2), and is therefore void and unconstitutional.
It was, however, argued that
section 9 (1-A)
could
not he considered wholly void, as, under article 13(1 ),
an existing law inconsistent with a fundamental right
is void only to the extent of the inconsistency and no
more. · In so far as the securing of the public safety or
the maintenance of public order would include
the
security of the
State, the impugned provision,
as
applied
to
the
latter
purpose,
was
covered
by
clause (2) of article 19 and must, it was said, be held
to he valid. We are unable to accede to this contention.
'Vhere a law
purports to authorise the
imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and
without
the
lirpits
of
constitutionally
permissible
legislative action affecting_ such right, it is not possible
to uphold it even so far as if may be applied within
the constitutional limits,
a:s
it is not severable. So
long as the possibility of its being applied for purposes
not sanctioned by the Constitution cannot be ruled
out,
it must be held to be wholly unconstitutional and void.
In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of
speech and expression only in cases· where danger to
the State is involved,
an enactment, which
is capable
of being applied to cases where no such danger could
arise, cannot be held to be constitutional and valid to
any extent.
The application is therefore allowed and the order
of the respondents
prohibiting the entry and circulatton of the petitioner's journal in the
State of
Madras
is hereby quashed.
FAZL Au J.-For the reasons given by me in B1'ij
Bhushan and Another v. The State( t ), which practically
( 1) [19:0] S.C.R. 601.
1950
Romesh T happat
V.
The Slate of
Madras.
Patanjali
Sastri, ].
Fa~l Ali ].
Ronush Thappar
v.
Ti.. Sia/I of
Madras.
Fad Ali,].
604
SUPREME COURT REPORTS
[1950}
involves
the same question as is involved in this case,.
I hold that the reliefs sought by the petitioner cannot
be granted. In this
view, I would dismiss this . petition, but I should like to add a few observations to
supplement what I have said in the other case.
It appears to me that in the ultimate analysis the
real question to be decided in this case is whether
"disorders involving menace
to the peace and tranquillity of the Province" and ailecting "public safety"
will be a matter which undermines the security of the
State or not.
I have borrowed the
words
quoted
within inverted commas from the preamble of the Act
which shows
its scope and necessity
and
the question
raised before us attacking the validity of the Act
must be formulated in the manner I have suggested.
If the answer to the question is in the affirmative, as
I think it
must be, then
the impugned
law
which
prohibits entry into the State of Madras of "any
document or class of documents" for securing public
safety and maintenance of··public order ,,hould satisfy
the requirements laid down in article 19 (2) of the
Constitution. From the trend of the arguments addressed to us, it would appear that if a document is
seditious, its
entry
could
be validly
prohibited,
because
sedition
is
a matter which undermines the
security of the State ; but if, on the other hand, the
document is calculated
to disturb
public
tranquillity
and affect public safety, its entry cannot
be prohibited,
because
public
disorder and
disturbance
of
public
tranquillity
are
not
matters
which
undermine
the
security of the State. Speaking for myself, I cannot
understand
this
argument.
In
Brij
Bhushan
and
Another v. The State( 1), I have quoted good authority
to show that sedition owes its gravity to its tendency to
create disorders and
an authority on criminal
law
like Sir James Stephen has classed sedition as an
offence against public
tranquillity. If so, how
could
sedition be a matter which would undermine the security of the State and public disorders and disturbance
of public safety will not be such a matter? It was
argued
that
a
small
riot
or
a
affray
will
not
(1) [19;0) S.C.R. 605.
)
-!
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.