TMI Blog1960 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... rein 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 Farrukliabad. 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, that s. 3 of the U. P. Special Powers Act (Act No. XIV of 1932), 1932, (hereinafter called the Act) was void under the Constitution. In the first instance the petition came up for disposal before a division bench of the High Court at Allahabad consisting of Desai and Chaturvedi, Elaborate arguments wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o whom an arrear of liability is due may apply to the Collector to realize it and the Collector is authorized to realize the same as an arrear of land revenue. The impugned section may be dissected into the following components (i) whoever by word, either spoken or written, or by signs or by visible representations or otherwise, (ii) instigates, (iii) expressly or by implication,(iv) any person or class of persons, (v) not to pay any liability, (vi) to defer payment of any liability, (vii) does an act with intent that any words etc. shall 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, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 should be complied with, viz., (i) the restrictions imposed must be reasonable; and (ii) they should be in the interests of public order. Before we consider the scope of tile word,-, of limitation, reasonable restrictions and in the interests of , it is necessary to ascertain the true meaning of the expression public order in the said clause. The expression public order has a very wide connotation. Order is the basic need in any organised society. It implies the orderly state of society or communit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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: We, 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 pustulated that public order is synonymous with public peace, safety and tranquillity. The next question is what do the words interest of public order mean ? The learned Advocate General contends that the phrase in the interest of public order is of a wider connotation than the words for the maintenance of public order and,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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 contains some observations which give considerable assistance to construe the words. In that case, the appellant was detained in pursuance of the order made 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) 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 the peace and that, therefore, detention with a view to prevent such black marketing was covered by the entry. Answering that argument, Patanjali Sastri, J.,as he then was, pointed out, at p. 69: Activities such as these are so remote in the chain of relation to the maintenance of public order that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 250, or with both. By so doing he argues that instigation 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 provisions of Part III, ire void only to the extent of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... skill. That conclusion was sufficient to reject the contention raised in that case; but even on the assumption that prize competition as defined in s. 2(d) of the Act included those in which success depended to substantial degree on skill as well as those in which it did not so depend, this Court elaborately considered the doctrine of severability and laid down as many as seven rules of construction. On the application of the said rules it was held that the impugned provisions were severable in their application to competitions in which success did not depend to any substantial degree on skill. The foregoing discussion yields the following results: (1) Public order is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State; (2) there must be proximate and reasonable nexus between the speech and the public order; (3) s. 3, as it now stands, does not establish in most of the cases comprehended by it any such nexus; (4) there is a conflict of decision on the question of severability in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X
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