# Veci:appa Pillai v. Raman & Raman Ltd. & Otlzerr. Chandrasek ham Aiyar /

- **Citation:** [1952] 1 S.C.R. 597
- **Court:** Supreme Court of India
- **Decided:** 1952-03-31
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/veci-appa-pillai-v-raman-raman-ltd-otlzerr-chandrasek-ham-aiyar-53
- **Pages:** 15

## Headnote

> •
S.C.R.
SUPREME COURT REPORTS
597
For the reasons given above, the appeal is allowed
and the order of the High Court set aside. Each party
will bear their own costs of these proceedings throughout.
Appeal allowed.
Agent for the appellant : S. Subrahmanyam.
Agent for respondent No. 1 : M. S. K. Sastri.
Agent for respondent No. 4 : P. A. Mehta.
STATE OF MADRAS
v.
V. G. ROW
UNION OF INDIA & STATE I
OF TRA VAN CORE-COCHIN. J lnterveners
[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,
-
MuKHERJEA, DAs and CHANDRASEKHARA
AlYAR JJ.)
Indian Criminal Law Amendment Act (XIV of 1908) as amended
·by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2)
(b), 16-Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bearers-Validity of law-Unreasonable
restriction on
right to
form
associations-Constitution of India,
art. 19 (1) (c), (4).
Section 15 (2) (b) of the Indian Criminal Law Amendment
Act, 1908, .is amended by the Indian Criminal Law Amendment
(Madras) Act, 1950, included within the definition of an "unlawful association"· an association "which has been
declared
by
the
State by notification in the Official Gazette to be unlawful on the
ground
(to
be
specified
in
the
notification)
that such
association
( i) constitutes
a danger
to
the
public
peace,
or (ii) has
interfered or interferes with the maintenance of
public order or has such interference for its object,
or
(iii)
has
interfered
or
interferes
with
the
administration
of
the
law,
or
has
such
interference for
its
object."
Section
16 of the Act as amended provided that a notification
under
s. 15 (2) (b) shall (i) specify the ground on which it is issued and
such other particulars, if any, as may have ~ bearing on
the
2-7 S. C. India/71
1952
Veci:appa Pillai.
v.
Raman & Raman
Ltd. & Otlzerr.
Chandrasek ham
Aiyar /.
1952
March 31
1952
S111te of Madras
v •
• V. G. Row.
598
SUPREME COURT REPORTS
[1952]
necessity therefor and (ii) fix a reasonable period .for any office.
bearer or member of the association or any other person interested
to make a representation to the State Government in respect
of
the issue of the notification. Under s. 16A the Government was
required after the expiry of the time fixed in the notification for
making representation to place the matter before an Advisory
Board and to cancel the notification if the Board finds that there
was no sufficient cause for the issue of such noti6.cation.
There
was however no provision for adequate communicatiori
of the
notification to the association and its members or office bearers.
It was conceded that the test under s. 15(2)(b) as amended was, as
it was under s. 16 as it stood before the amendment, a subjective
one and the factual existence or otherwise of the grounds was
not
a justiciable issue and the question was whether s.
15(2)(b)
was unconstitutional and void :
Held, (for reasons stated below) that s. 15(2)(b)
in;p~sed
restrictions
on
the
fundamental
right
to
form
assoc1at.J.ons
guaranteed by art. 19 (I) ( c ), which were not reasonable within
the meaning of art. 19( 4) and was therefore unconstitutional and
void. The fundamental
right to form associations or unions
guaranteed by art. 19 (!) ( c) of the Constitution has such a wide
and varied scope for its exercise, and its curtailment is fraught
with such
potential reactions
in the religious, political
and
economic fields, that. the vesting of the authority in
the
executive Government to impose restrictions on such right, without
allowing the grounds of such imposition, both in their factual
and legal aspects to be duly tested in a judicial inquiry, is a
strong element which should be taken into account in judging
the
reasonableness of restrictions imposed on the
fundamental
right under art. 19(l)(c). The absence of a provision for adequate
communication of the Government's notification under s. 15(2)(b)
by personal service or service by affixture to the
asso

## Text

> •
S.C.R.
SUPREME COURT REPORTS
597
For the reasons given above, the appeal is allowed
and the order of the High Court set aside. Each party
will bear their own costs of these proceedings throughout.
Appeal allowed.
Agent for the appellant : S. Subrahmanyam.
Agent for respondent No. 1 : M. S. K. Sastri.
Agent for respondent No. 4 : P. A. Mehta.
STATE OF MADRAS
v.
V. G. ROW
UNION OF INDIA & STATE I
OF TRA VAN CORE-COCHIN. J lnterveners
[PATANJALI SASTRI c. J., MEHER CHAND MAHAJAN,
-
MuKHERJEA, DAs and CHANDRASEKHARA
AlYAR JJ.)
Indian Criminal Law Amendment Act (XIV of 1908) as amended
·by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2)
(b), 16-Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bearers-Validity of law-Unreasonable
restriction on
right to
form
associations-Constitution of India,
art. 19 (1) (c), (4).
Section 15 (2) (b) of the Indian Criminal Law Amendment
Act, 1908, .is amended by the Indian Criminal Law Amendment
(Madras) Act, 1950, included within the definition of an "unlawful association"· an association "which has been
declared
by
the
State by notification in the Official Gazette to be unlawful on the
ground
(to
be
specified
in
the
notification)
that such
association
( i) constitutes
a danger
to
the
public
peace,
or (ii) has
interfered or interferes with the maintenance of
public order or has such interference for its object,
or
(iii)
has
interfered
or
interferes
with
the
administration
of
the
law,
or
has
such
interference for
its
object."
Section
16 of the Act as amended provided that a notification
under
s. 15 (2) (b) shall (i) specify the ground on which it is issued and
such other particulars, if any, as may have ~ bearing on
the
2-7 S. C. India/71
1952
Veci:appa Pillai.
v.
Raman & Raman
Ltd. & Otlzerr.
Chandrasek ham
Aiyar /.
1952
March 31
1952
S111te of Madras
v •
• V. G. Row.
598
SUPREME COURT REPORTS
[1952]
necessity therefor and (ii) fix a reasonable period .for any office.
bearer or member of the association or any other person interested
to make a representation to the State Government in respect
of
the issue of the notification. Under s. 16A the Government was
required after the expiry of the time fixed in the notification for
making representation to place the matter before an Advisory
Board and to cancel the notification if the Board finds that there
was no sufficient cause for the issue of such noti6.cation.
There
was however no provision for adequate communicatiori
of the
notification to the association and its members or office bearers.
It was conceded that the test under s. 15(2)(b) as amended was, as
it was under s. 16 as it stood before the amendment, a subjective
one and the factual existence or otherwise of the grounds was
not
a justiciable issue and the question was whether s.
15(2)(b)
was unconstitutional and void :
Held, (for reasons stated below) that s. 15(2)(b)
in;p~sed
restrictions
on
the
fundamental
right
to
form
assoc1at.J.ons
guaranteed by art. 19 (I) ( c ), which were not reasonable within
the meaning of art. 19( 4) and was therefore unconstitutional and
void. The fundamental
right to form associations or unions
guaranteed by art. 19 (!) ( c) of the Constitution has such a wide
and varied scope for its exercise, and its curtailment is fraught
with such
potential reactions
in the religious, political
and
economic fields, that. the vesting of the authority in
the
executive Government to impose restrictions on such right, without
allowing the grounds of such imposition, both in their factual
and legal aspects to be duly tested in a judicial inquiry, is a
strong element which should be taken into account in judging
the
reasonableness of restrictions imposed on the
fundamental
right under art. 19(l)(c). The absence of a provision for adequate
communication of the Government's notification under s. 15(2)(b)
by personal service or service by affixture to the
association
and
· its members and office-bearers was also a serious defect.
The formula of subjective satisfaction of the Government or
of its officers with an advisory Board to review the materials on
which the Government seeks to override a basic freedom gu·~.ran
teed to the citizen, may be viewed as reasonable
only in very
exceptional circumstances and within the narrowest limits.
In considering the reasonableness of laws imposing restric·
tions on fundamental right, both the substantive and procedural
aspects of the impunged la\V should be examined from the point
of
view
of
reasonableness
and
the
test
of
reasonableness,
wherever
prescribed,
should
be
applied
to
each
individual
statute impunged and no abstract standard or
general
pattern
· of reasonableness can be laid down as applicable to all cases.
The
nature of the right alleged to have been infringed, the underly·
· ing purpose of the restrictions imposed, the extent and urgency of
the evil sought to be remedied thereby, the disproportion of the
· imposition,
the prevailing conditions at the time should all
. -
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S.C.R.
SUPREME COURT REPORTS
599
-enter
into
the
judicial verdict.
In evaluating
such
elusive
1952
factors and forming their own conception of what is reasonable,
in all the circumstances of a given case, it is inevitable that the Stare of Madras
social philosophy and the scale of values of the judges particiv.
-pating in the decision should play an important
part, and
the
V. G. Row.
limit to their interference with legislative judgment in such
cases can only be dictated by their sense of responsibility and
self-restraint and the sobering reflection that the Constitution is
meant not only for people of their way of thinking but for all,
and that the majority of the elected representatives of the people
have, in authorising the imposition of the restrictions, considered
them to be reasonable.
A. K. Gopalan v. The State ([1950] S.C.R. 88) and Dr. Khare
v. The State of Punjab ([1950] S.C.R. 519) distinguished.
M.
C. Setalvad, Attorney-General for
India,
(S.
Govind
Swaminathan
and R.
Ganapathi
Iyer , with
["
him) for the appellant (State of Madras).
•
C. R. Pattabhi Raman for the respondent.
M. C. Setalvad, Attorney-General for India ( G. N.
Joshi, with him) for the Union of India.
T.
N.
Subrahmanya
Iyer,
Advoerate-General
of
Travancore-Cochin
(M. R. Krishna Pillai, with him)
for the State of Travancore-Cochin.
1952. March 31. The Judgment of the Court was
delivered by
PATANJALI SAsTRI C. J.-This is an appeal from an
order of the High Court of Judicature at Madras adjudging section 15 (2) (b) of the Indian Criminal
Law
Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras)
Act, 1950, (hereinafter referred to as the impugned Act)
as unconstitutional and void, and quashing
Government Order No. 1517, Public (General) Department,
dated 10th March, 1950, whereby the State Government declared a Society called the People's Education
Society an unlawful association.
The respondent, who was the general secretary of
the Society, which was registered under the Societies'
Registration Act, 1860, applied to the High Court on
1952
State Uf Madras
"·
V. G. Row.
Pfltanjali
&stri C. {.
600
SUPREME COURT REPORTS
(1952]
10th April, 1950, under article 226 of the Constitution
complaining that the impugned Act and the Order
dated 10th March, 1950, purporting to be issued thereunder infringed
the
fundamental
right
conferred
on him by article 19 ( 1) ( c) of the Constitution to form
associations or unions and .seeking . appropriate reliefs.
The High Court, by a full bench of three Judges (Rajamannar C.
J ., Satyanarayana Rao and Viswanatha
Sastri JJ.) allowed the application on 14th September,
1950, and granted a certificate under article 132. The
State of Madras has brought this appeal.
The Government Order referred to above
runs as
follows:-
"WHEREAS in the opinion of the State
Government, rhe Association known· as the People's Education
Society, Madras, has for its object interference with
the administration of the law and the maintenance of
law and order, and constitutes a danger to the public
peace;
NOW, therefore, His Excellency the Governor
of
Madras, in exercise of the powers conferred by Section
16 of the Indian Criminal Law Amendment Act, 1908
(Central Act XIV of 1908) hereby declares the said
association to be an unlawful association
within
the
meaning of the said Act."
No copy of. this order was served on the respondent
or any other office-bearer of the society but it was
notified in the official Gazette as required by the impugned Act.
The declared objects of the Society as set out in the
affidavit of the respondent are :
(a) to encourage, promote, diffuse and popularise
useful knowledge in all sciences and more specially
· social science ;
(b) to encourage, promote, diffuse and popularise
political education among people ;
( c) to encourage, promote and popularise the study
and understanding of all social and political problems
and bring about social and political reforms ; and
"""
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S.C.R.
-SUPREME COURT' -REPORTS
601
- ( d) to
promote,
encourage
and
popularise
art,
literature and drama.
It was however, stated in a counter-affidavit £led
on behalf of the appellant by the Deputy Secretary to
Government, Public Department, that,
according to
inforniation received by the Government, the Society
was actively helpip.g the Communist Party in Madras
which had been declared unlawful in August 1949 by
utilising its funds through "its Secretary for carrying on
propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.
As the Madras Amendment Act (No. XI of 1950) was
passed on the 12th August, 1950, during the pendency
of the petition, which was taken up for hearing on the
21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In
order to appreciate the issues it is necessary to refer to
the relevant provisions. Before amendment
by the
Madras Act; the material provisions were as follows:-
"15. In this Part-
(1) "association" means any combrnation or body
of persons whether the same be known by any distinctive name or not ; and
(2) "unlawful association" means an association-
(a) which encourages or aids
persons to commit
acts of violence or intimidation or of which the members habitually commit such acts, or
(b) which has been declared to be unlawful by the
Provincial Government under the .powers hereby conferred.
16. If the Provincial Government is of opinion that
any association interferes or has for
its
object interference with the administration of the law or with the
maintenance of law and order, or that it constitutes a
danger to the public peace, the Provincial Government
may by notification in the offidal Gazette declare such
association to be unlawful."
- The amending Act substituted for clause (b) in Section 15(2) the following clause :-
•
1'952
State: of Madras
.v •
. v. G. Row.
Patrmjali
Sa;tri C. /.
1952
Stale If/ Madras
v.
V. G. Row.
Patania/i
StlSll'i C. /.
602
SUPREME COURT REPORTS
[1952]'
"(b) which has been declared by the State Government by notification in the official Gazette to be
unlawful on the ground (to be specified in the notification) that such association-
(i) constitutes a danger to the public peace, or
(ii) has interfered or interferes with the maintenance of public order or has such interference for its
object, or
(iii) has interfered or interferes with the administration of the law, or has such interference for its
object".
For the old section 16, sections 16 and 16A were
substituted as follows :
"16. (1) A notification issued under clause (b) of
subsection (2) of section 15 in respect of any association shall-
( a) specify the ground on which it is - issued, the
reasons for its issue, and such other particulars, if any,
as may have a bearing on the necessity therefor ; and
(b) fix a reasonable
period for
any
office-bearer
or member of the association or any other person
interested to make a representation
to the State
Government in respect of the issue of the notification.
(2) Nothing in sub-section (1) shall require the State
Government to disclose any facts
which
it considers
to be against the public interest to disclose."
Under section
16A the Government is
required,
after the expiry of the time-fixed in the notification for
making representations, to place before
an
Advisory
Board constituted by it a copy of the notification and
of the representations, if any, received before
such
expiry, and the Board is to consider the materials
placed before it, after calling for such
further information as it may deem necessary from the State
Government or from any office-bearer or member of
the association concerned or any other person, and
submit its report to the Government.
If it is found·
by the Board that there is no sufficient cause for
the
issue of the notification in respect of the association"
... ..
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S.C.R.
SUPREME COURT REPORTS
603
'
concerned, the Government is required to cancel the
notification.
There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or
both for membership or management of an unlawful
association and for taking part in meetings of
such
association or making, receiving or soliciting contributions
for
purposes
thereof.
Section
17 A, which
confers power on the Government to notify and take
possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where
such power was exercised, by way of application,
within thirty days of the notification in the official
Gazette, to the Chief Judge of the Small Cause Court
or the District Judge according as the place notified
is situated in the Presidency Town or outside, for "a
declaration that the place has not been used for the
purposes of any unlawful association". If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17B empowers
the officer taking possession of a notified place to forfeit
movable property found therein if, in his opinion,
such property "is, or may be used for the purposes of
the unlawful association" after following the procedure
indicated.
Section 17E
similarly
empowers
the
Government to forfeit funds of an unlawful association
"if it is satisfied after such enquiry as it may think
fit that such funds are being used or intended to be
used for the purposes of an unlawful association".
The procedure to be followed in such cases is also
prescribed.
By section
17F
jurisdiction
of
civil
courts, save as expressly provided, is barred in respect
of proceedings taken under sections 17 A to 17E.
By section 6 of the amending
Act
notifications
already issued and not cancelled
before
the amendment are to have effect as if they had been issued
under section 15 (2) (b) as, amended, and it is provided
in such cases a supplementary notification
should also
be issued as required in section 16 (1) (a) and (b) as
amended and thereafter the procedure provided by
State of M11dr111
v.
V. G. Row.
Pataniali
Sastri C. /.
1952
State of Madras
v.
V. G .. Row.
Patanjali
Sastri C. J.
604
SUl'REME COURT REPORTS
[1952]
I
the new. section 16-A should be followed. It was under
this provision that the validity of the notification
issued on the 10th March, 1950, under old section 16
fell to be cons,ideted in the light of the provisions of
the amended Act when the petition came up for hear-.
ing in the High Court on 21st August, 1950.
It will be seen that while old section 16 expressly
conferred on the Provincial
Government power
to
declare associations unlawful if, ·in its opinion, · there
existed cert.ain ~pecified grounds in relation to them,
those grolinds are now incorporated in section 15(2) (b)
as amended, and the reference to the "opinion" of the
Government is . dropped.
This led · to some .discussion
befor.e' us as io whether or not the grounds referred to
in section 15(2) (b)' as amended are justidable issues.
If the factual existence of those grounds could be made
the subject of inquiry in a court of law, the . restrictions sought to be imposed on. the right of association
would not be open to . exception, but then the Government would. 'apparently have no use for section 15
(2) (b).
For, it was strenuously contended on its behalf by the Attorney-General that
the
incorporation
of these grounds in a definition clause, which made
a declaration by Government the test of unlawfulness,
rendered the insertion of ,, the .words ''.in. its
opinion".
unnecessary and, indeed, inappropriate
and that ' ' the
omission of those words could not lead to any inference that the grounds on which the declaration was to
be based were intended to be any more justiciable
than under the old section 16 ; more especially as the
"opinion" or the ."satisfaction" of the
Government
or
of its oflicer:s is still the. determining factor in notifying
a place under section 17 A(l) and in forfi:iting· the
movables found therein under section 17B(l) or the
funds of an unlawful association under section
17E
(1). The provision· for an inquiry as to the existence
or
otherwise ' of such grounds before an
Advisory
Board and for: cancellation of the notilicatidn in· case
the Board found · there was no sufficient cause for declaring the assoeiation as unlawful also pointed; it was·
urged to . the same · conclusion.. The contention is not
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S.C.R.
SUPREME COURT REPORTS
without force, and the position wa:s not contested for
?952!
the respondent. It may, accordingly,
be taken that State,'of.M'{llras.
the test under section 15(2) (b) is as it was under the
.·l'.
old section 16, a subjective one, and the factual exist-
.V. G. Raw.
ence or otherwist of the grounds is not a justiciable
issue.
. It is on this basis, then, that the question has to be
determined as to whether section 15 (2) (b) as amended
falls within the limits of constitutionally
permissible·
legislative abridgement of the fundamental right conferred on the citizen by article 19(1)(c). Those limits
are defined in clause ( 4) of the same article.
" ( 4) Nothing in sub-clause ( c) of the said clause shall
affect the operation of any existing law in so far as
it
iinposes, or prevent the State from making any
law
imposing, in the interests of public order or morality,
reasonable restrictions on the exercise of the right
conferred by the said sub-clause."
It wasi not disputed that the restrictions in
question
were imposed "in the interests of public order". But,
are they "reasonable" restrictions within the
meaning
or article 19 ( 4) ?
Before proceeding to consider this question, we think
it right to point out, what is sometimes overlooked,
that our Constitution contains express provisions for
judicial review of legislation as to its conformity with
the Constitution, unlike as in America where the
Supreme Court has assumed
extensive powers
of
reviewing legislative acts under cover of the widely
interpreted "due process" clause in the Fifth
and
Fourteenth Amendments.
If, then, the courts in this·
country face up to such important and none too easy
task, it is not out of any desire to tilt at legislative
authority in a crusader's spirit, but in discharge of a
duty plainly laid upon them by the
Constitution.•
This is especially true as regards the "fundamental
rights", as to which this Court has been assigned the'
role of a sentinel on the qui vive. While the Court
naturally . attaches great weight to the legislative judg-
·ment, it cannot desert its own.·, ducy: : to' : determine
Patanjali.
.!/alt.ri C. /.
1952
State of Mlldr111
v.
V. G. Row.
Pataniali
Sastri C. f.
606
SUPREME COURT REPORTS
[1952]
.finally the constitutionality
of an
impugned statute.
We have ventured on these obvious remarks because
it appears to have been suggested in some quarters
that the courts in the new set
up are out to seek
clashes with legislatures in the country.
The learned Judges of the High Court unanimously
held that the restrictions under section 15 (2) (b) were
not reasonable on the ground of (1), the inadequacy
of the publication of the notification, (2) the omission
to fix a time-limit for the Government sending the
papers to the Advisory Board or for the latter to make
its report, no safeguards being
provided
against
the
Government enforcing the penalties in the
meantime,
and (3) the denial to the aggrieved person of the right
to appear either in person or Ly pleader before the
Advisory Board to make good his representation.
In
addition to these grounds one of the learned
Judges
(Satyanarayana Rao J.) held that the impugned
Act
offended against article 14 of the Constitution in that
there was no reasonable basis for the differentiation
in treatment between the two classes of unlawful
associations mentioned in section 15(2) (a) and (b ) •.
The
o~her learned Judges did not, however, agree with
this vi,ew.
Viswanatha Sastri J. further held that the
provisions for forfeiture of property
contained in the
impugned Act were void as they had no reasonable
relation to the maintenance of public order. The other
two Judges expressed no opinion on this point. While
agreeimg with the cpnclusion of the learned Judges that
section 15 (2) (b) is unconstitutional and void,
we
are
of opinion that the decision can be rested on a broader
and more fundamental ground.
This Court had occasion in Dr. Khare's case (1 )
tO·
define the scope of the judicial review under
clause
(5) of article 19 where the phrase
"imposing reasonable restrictions on the exercise of the right"
also.
occurs, and four out of the five
Judges participating
in the decision expressed the view
(the other Judge
leaving the question open)
that both the
substantive
and the procedural aspects of the impugned restrictive·
( 1) [1950] S.C.R. 519.
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S.C.R.
SUPREME COURT REPORTS
law should be .f.Xamined from the point of view of
rearonableness ; · that is to say, the Court should consider not only factors such as the duration and the
extent of the restrictions, but also the circumstances
under which and the manner in which their imposition
has been authorised. It is important in this;
context
to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each
individual
statute impugned, and no abstract standard, or general
pattern, of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to
have been infringed, the underlying purpose of the
restrictions imposed, the extent and urgency of the
evil sought to be remedied thereby, the disproportion
of the imposition,
the
prevailing
conditions at the
time, should all enter mto the judicial verdict.
In
evaluating such elusive factors and forming their own
conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the
social philosophy and the scale ·of values of the judges
participating in the decision should play an important
part, and the limit to their interference with
legislative judgment in such cases can only be dictated
by
their sense of responsibility
and
self-restraint
and
the sobering reflection that the Constitution is meant
not only for people of their way of thinking but for all
and that the majority of the elected representatives of
the people have, in authorising the imposition of the
restrictions, considered them to be reasonable.
Giving due weight to all the considerations
indicated above, we have come to the conclusion that
section 15 (2) (b) cannot be upheld as falling within
the limits of authorised restrictions on
the
right
conferred by article 19 (1) (c).
The right to form
associations or unions has
such wide
and
varied
scope for its exercise, and its curtailment is fraught
with such potential reactions in the religious,
political
and economic fileds, that the vesting
of
authority
m
the executive government to impose restrictions
on
such right, without allowing the grounds of such imposition, both in their factual and · legal as,pects, to be
1952
State of MadraJ
v.
V. G. Row.
Patanjali
Sastri C. /.
1952
State of Mat/ros' ·:
'°Y•
V. G. ·Rql/!.
Patanjali
.Sastri C. /.
608.
SUPREME COURT REPORTS
[1952]
duly tested in a judicial inquiry, is a strong element'
which, in our opinion, must be taken into account in.
judging the reasonableness of the restrictions
imposed.
by section 15 (2) (b) on the exercise of the fundamental right under article 19 ( 1) ( c) ; for, no summary
and what is bound to be a largely one-sided review by
an Ach•L,ory Board, even where its verdict is binding
on the executive ·government, can be a substitute for
a judicial enquiry.
The formula of subjective satisfaction of the Government or of its officers, with an
Advisory Board thrown in to review the materials on
which the Government seeks to override a basic free-·
dom guaranteed to the citizen, may be viewed as
reasonable only in very exceptional circumstances and,
within the narrowest limits, and cannot receive judicial
approval as a general pattern of
reasonable
restrictions on fundamental rights. In the case of preventive•
detention, no doubt, this Court upheld in
Gopalan' s
case(') deprivation of personal liberty by such means,-
but that was because the Constitution itself sanctions
laws providing for preventive detention, as to which
no question of reasonableness could arise in view of the
language of article 21.
As pointed out by Kania C. J ."
at page 121, quoting Lord Finlay in Rex v. Halliday(');
"the court was the least appropriate
tlribunal 'to investigate into circumstances:
of
suspicion on which
such anticipatory action must be largely based".
The Attorney-General
placed strong
reliance
on
the decision in Dr. Khare' s cas~(') where the subjective satisfaction of the Government regarding
the
necessity for the externment of a person, coupled ·with
a reference of · the matter to an Advisory Board whose
opinion, however, had no binding force, was considered
by a majority to be "reasonable" procedure for reStricting the right to move freely conferred by
article
19 ( 1) (b). The Attorney-General claimed
that the
reasoning of that decision applied · a fortiori to
the
present case, as the impugned Act provided that the
Advisory Board's report was binding on the Government. We cannot agree.
We consider that. that case
( 1 ) [19501 S.C.R. 88.
(2 ) [1917] A:c. 260, 269,
: . ( 8 ) [1950] S.C.R. 519.
.
.
.
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'
...
<
•
..
•
S.C.R.
SUPREME •. COURT ·.REPORTS
609
is distinguishable in several essential particulars. For
19~2
one thing. externment of individuals, like preventive 8
>f M
detention; is largely precautionary and based on sus- '"'"°v. adra•
picion. ·In fact, section A (1), of the East·Punjab
v.0:11owc
Public Safety Act, which was the subject of.considera~
tion in Dr; Kha re's case('), authorised both preventive
Palanjali
detention and. externmenL for. the same purpose and
80"'' 0 • J.
on the same ground namely, "with a view to prevent.
ing him from acting in any manner prejudicial to the
public safety or the maintenance of public -0rder it·. is
necessary; etc.".· Besides, both involve an element of
emergency requiring prompt steps to be taken. to prevent apprehended danger to public tranquillity;:· and
, authority has.to be vested in the Government and its.
officers to take appropriate action on. theii: own res"
ponsibility. . These features. are; , however, absent in
the grounds on which the Government is. authorised,
under section 15 (2) (b), to declare associations unlaw •
ful. · These grounds; taken by themselves, are factual·
and not anticipatory or based on suspicion. ·An association is allowed to . be declared unlawful because
it "constitutes" a danger or "has interfered or· .interferes" with the maintenance .of public.order or "has
such interference fore its object",. etc.· ... The factual
existence· of .-these grounds is :amenable to objective
d_etermination by the court;: quite as: much· as the
grounds mentioned in clause {a) of sub-section (2) of
section 15; as to which the Attorney-Generalconceded
that it . would be . .incumbent : f on, the ·Government
to establish, as, a fact, that the association, which
it a!leged,to •be unlawful, "encouraged" or .'.'aided"·
persons to commit acts of· ·violence,· etc;: \Ve :are
unable to discover any.reasonableness in the claim. of
the Government in seeking,.by its mere ,declaration,
·to shut.out judicial enquiry into the underlying facts
under clause (b). Secondly, the East Punjab Public .
Safety Act.was a temporary enactmentwhich,was to
be in force only for a year, and any order made there-'
under wasJo. expire at. the. termination ofthe Act.
\Vhat. may be_ regarded as a. reasonable restriction
(1) [1950) S.C.R. si9. :
0
(
(
1952
State of Madras
v.
V. G. Row.
Patanjali
Sastri C. /.
610
SUPREME COURT REPORTS
[1952]
imposed under such a statute will not necessarily be
considered reasonable under the impugned Act, as the
latter is a permanent measure, and any declaration
made thereunder would continue in operation for
an
indefinite period until the Government should think
fit to cancel it. Thirdly, while, no doubt, the Advisory
Board procedure under the impugned Act provides a
better safeguard than the one under the East Punjab
Public Safety Act, under which the report of such
body is not binding on the Government, the impugned
Act suffers from a far more serious defect in the absence
of any provision for adequate communication of
the
Government's notification under section 15(2)(b) to
the association and its members or office-bearers.
The
Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no
personal service on any office-bearer or member of the
association concerned or service by aflixture at the
office, if any, of such association is prescribed. Nor
is any other mode of proclamation of the notification
at the place where such
association
~arries
on
its
activities
provided for.
Publication in the official
Gazette, whose publicity value is by no means great,
may not reach the members of the association declared
unlawful, and if the time fixed expired before they
knew of such declaration, their right of making a representation, which is the only opportunity of presenting their case, would be lost. Yet, the consequences
to the members which the notification involves are
most serious, for, their very member.iliip thereafter is
made an offence under section 17.
There was some discussion at the bar as to
whether
want of knowledge of the notification would be a valid
defence in a prosecution under that section.
But it is
not necessary to enter upon that question, as the very
risk of prosecution involved in declaring an association
unlawful with penal consequences, without providing
for adequate communication of such declaration to the
association and its members or office-bearers, may well
be considered sufficient to rendc;r · the imposition
of
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-
S.C.R.
SUPREME COURT REPORTS
611
restrictions
by
such
means
unreasonable.
In this
respect an externment order stands on a different
footing, as provision is made for personal or other adequate mode of service on the individual concerned,
who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in
Dr. Khare' s case(1) is distinguishable and cannot rule
the present case as claimed by the learned AttorneyGeneral. Indeed, as we have observed earlier, decision dealing with the validity of restrictions
imposed
on one of the rights conferred by article 19 (1) cannot
have much value as a precedent for adjudging the
validity of the restrictions imposed on another right,
even when the constitutional criterion is the same,
namely, reasonableness, as the conclusion must depend
on the cumulative effect of the varying facts and circumstances of each case.
Having given the case our best and most anxious
consideration, we have arrived at the conclusion,
in
agreement with the learned Judges of the High Court,
that, having regard to the peculiar features to
which
reference has been made, section 15 (2) (b) of the
Criminal Law Amendment Act, 1908, as amended by
the Criminal Law Amendment (Madras) Act, 1950,
falls outside the scope of authorised restrictions under
clause ( 4) of article 19 and is, therefore, unconstitutional and void.
The appeal fails and is accordingly dismissed with
costs.
Appeal dismissed.
Agent for the appellant : P.A. Mehta.
'·
Agent for the respondent : S. Subrahmanyan.
Agent for the Union of India and the State of
Travancore-Cochin : P. A. Mehta.
(1) [1950] S.C.R. 519.
1952
State of Madras
v.
V. G. Row.
Patanjali
Sastri C. /.