TMI Blog1950 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... te and the notification ran as follows :-- In exercise of the powers conferred by section 9 (I-A) of the Madras Maintenance of Public Order, Act, 1949 (Madras Act XXIII of 1949) His Excellency the Governor of Madras, being satisfied that for the purpose of securing the public safety and the maintenance of public 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 claims that the said order contravenes the fundamental right of the petitioner to freedom of See the headnote to Brij Bhushan v. The State of Delhi, p. 605 infra 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 under article 13 (1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. The Advocate-General of Madras appearing on be half of the respondents raised a preli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ensured by the freedom of circulation. Liberty of circulation is as essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value : Ex parte Jackson(1). See also LoveIl v. City of Griffin(s). It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner's fundamental right under article 19 (1) (a), unless section 9 (1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any existinglaw 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 purports by section 9 (1-A) to authorise the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any 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), promoting enmity between clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the show and threat of it. 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, while the right of peaceable assembly sub- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent 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 possible. 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. Minnesotta]. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the peace and tranquillity of the Province and affecting 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 should 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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