)

-!

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 mis­

used 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-censor­

ship on newspapers for securing public safety and preventing public

disorder-Validity-Matter disturbing public safety

or causing

pub­

lic disorder, whether "undermines the secut·ity of, or tends to over­

throw, 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 Provin­

cial Government or any authority authorised by it in this behalf,

if satisfied that such action is necessary for preventing· or combat­

ing any activity prejudicial to the public safety or the mainten­

ance 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.

1950

Brij Bhus""' &I

A'1t1lhtr

v.

T Ju S1au ef

n.lhi.

606 SUPREME COURT REPORTS [1950]

particular subject or class of subjects shall before publication be

submitted for ~crutiny."

Held per KANIA C. J., PATANJALI S1i.sTRI, MEHR CHAND

·MAHAJAN, MuKHERJEA and DAs JJ.-(FAZL ALI J. dissenting)

that inasumch

as s. 7 ( l) ( c) authorised the imposition of restric­

tions

on the fundamental right of freedom of

speech and expres­

sion guaranteed

by art. 19 (1) (a) of the Constitution for the pur-

·

pose of preventing activities prejudicial to public safety and main­

tenance of public order, it was not a law relating to "a matter

which undermines the security of, or tends to overthrow, the

Stace'' within the meaning of the saving provisions contained in

cl. (2) of art. 19 and was therefore µnconstitutional and void.

[Romesh Thappm· v. The State 1950 S.C.R. 594] followed.

Per FAZL ALI J.-The expression "public safety"_ has, as a

result of a long course of legislative practice acquired a well­

rccognised meaning and may

be taken to denote safety, or security

of the

State; and, though the expression "public order" is wide

enough

to cover small disturbances of the peace which do not

jeopardise the security of the

State yet, prominence given in the

Act to public safety, the fact that the Act

is a piece of special

legislation providing for special

measures· and the aim and scope

of the Act in general, show that preservation of public safety

is

the dominant purpose of the

Act~ and .. public order" may well

be paraphrased in the context as "public tranquillity". Public J

disorders which disturb the public ~ranquillity do undermine the

security of the State and as s. 7 ( 1) ( c) of the impugned Act is

aimed at preventing such disorders it is difficult to hold that it

falls outside the ambit of Art. 19(2) of the Constitution.

Held by the Full Court.-The imposition of pre<ensorship on

a journal

is a restriction on the liberty of the press which is an

essential

"part of the right to freedom 0:£ speech and expression

declared

by art. 19 (1) (a).

Blackstone's Commentaries referred .to.

ORIGINAL JuR1SDICTioN : PETITION No. XXIX of 1950.

Application under article 32 of the. Constitution

of India for a

writ of certiorari and prohibition. The

facts are stated in the judgment.

N. C. Chatterjee ( B. Banerji, with him) for the

petitioner. · M. C. Setaluad, Attorney-Gene~al for India, (S. M.

Sikri, with him) for the respondent.

1950. May 26. The judgment of Kania C. J ., Patanjali

Sastri, Mehr Chand Mahajan, Mukherjea and Das JJ.

was delivered by Patanjali Sastri J.

FAZL Au J. delivered a separate dissenting judgment.

S.C.R. SUPREME COURT REPORTS 607

PATANJALI SAsTR1 J.-This is an application under

article

32 of the Constitution praying for the issue of

writs of certiorari and prohibition to the respondent,

the Chief Commissioner

of Delhi, with a view to

exa­

mine the legality of and quash the order made by him

in regard

to an English weekly of Delhi called the

Organizer of which the

first applicant is the printer

and publisher, and the

second is the editor.

On 2nd

March, 1950, the respondent, in exercise of powers

conferred on him

by section 7 ( 1) ( c) of the East Punjab Public Safety Act, 1949, which has been ex­

tendtd to the Delhi Province and is hereinafter referred

to ·as the impugned Act, issued the following order :

"Whereas the Chief Commissioner, Delhi, is satis­

fied that -Organizer, an English weekly of Delhi, has

been publishing highly objectionable matter constitu­

ting a threat to public law and order and that action

as is hereinafter mentioned is necessary for the pur­

pose of preventing or combating activities prejudicial to

the public

safety or the maintenance of public order.

Now therefore in

exercise of the powers conferred

by section 7(1)(c) of the East Punjab Public

Safety

Act, -i949, as extended to the Delhi Province, I,

Shankar Prasad, · Chief Commissioner, Delhi, do by

this order require you Shri Brij Bhushan, Printer and

Publisher and Shri K. R. Halkani, Editor of the

aforesaid paper

to submit for scrutiny, in duplicate, before publication, till fyrther orders, all communal

matter and

news and views

· about Pakistan including

photographs and cartoons other than · those derived

from

official sources

· or supplied by the news agencies,

viz., Press Trust of India, United Press of India and

United

Press of America to the

Provincial Press

Officer, or in his absence, to Superintendent of Press

Branch at his office at 5, Alipur Road, Civil Lines,

Delhi, between the hours 10 a.m. ·and 5 p.m. on

working days."

The only point argued before us relates to the con­

stitutional validity of section 7 (1) ( c) of the impugned

Act which,

as appears from its preamble, was passed "to provide special measures to ensure . public safety

19j0

Brij B/Uu1-Ill

AltOllttr

v.

Tlw Slau of

D1/hi.

PolaNjali

&slri, J.

1950

llr{i Bhushan &

Anollur.

v.

The State of

Delhi.

Palanjali

S,utri, .7·

608 SUPREMl<: COURT REPORTS

[1950]

and maintenance of public order." Section 7 ( 1) ( c)

· under which the aforesaid order purports to have

been made reads (so far

as material here) as follows :-

'The

Provincial Government or any authority

authorised

by 1t

111 this behalf if satisfied th~t such

action

is necessary for the purpose of preventing or

combating any activity prejudicial to the public safety

or the maintenance

of public order may, by order

in writing addressed to a printer, publisher or editor

require that any matter relating

to a particular

sub­

ject or class of subjects shall before publication be

submitted for scrutiny."

The petitioners claim that this provision infringes

the fundamental right

to the freedom of speech and

expression conferred upon them

by article 19(1) (a) of

the Constitution inasmuch

as it authorises the

imposi­

tion of a restriction on the publication of the journal

which

is not justified under clause (2) of that article.

There can

be little doubt that the imposition of

pre­

censorship on a journal is a restriction on the liberty

of the press which

is an essential part of-the right to

freedom of

speech

·and expression declared by arti­

cle 19(1) (a). As pointed out by Blackstone in his

Commentaries "the liberty of the press consists in

laying no previous restraint upon publications, and

not in freedom from censure for criminal matter when

published. Every freeman

has an undonbted right to

lay what sentiments he pleases before the public ; to

forbid this, is to destroy the freedom of the press(').

The only question

therefore is whether section 7 (l)(c)

which anthorises the imposition ·of such a restriction

falls within the reservation o[ caluse (2) of article

19.

As this question turns on

comit!erations which are

essentiallv the .<ame as those on which our decision in

Petition No. XVI of 1950(') wJ' based, our judgment in

that

case concludes the present case also. Accordingly,

for the reasons

in\licated in that judgment, we allow

this petition and hereby quash the impugned order of the

Chief Commissioner, Delhi, dated the 2nd March, 1950.

(1) Blackstone's Comn:.cntaries, Vol. IV~ pp. 151, 152.

(') Romtsh Thappar v. The State of Madras, supra p. 594.

S.C.R. SUPREME COURT REPORTS

1950

FAUL Au J.-Tlie question raised in the ,case relates

to the validity of section 7(1) (c) of the East Punjab

Public Safety Act, 1949 (as extended to the Province

of Delhi); which . runs as follows:-

Brij Bliusltan &

.dllllllrlr

"The Proyincial Government or any authority

authorised

by it in this behalf if satisfied that such

action is necessary for the purpose of preventing or

combating

any activity prejudicial to the public safety

or the maintenance of public order, may, by order 'tn

writing addressed to a printer, publisher or editor-

• •

(c) require that any matter relating to a particular

subject or class· of subjects shall before publication be

submitted for scrutiny ;"

It should be noted that the provisio11s of sub-clause

( c) are not in gen!=ral terms but are confined to a

"particular subject or . class of subjects," and that

having regard

to the context in which these words are

used,

they must be connected

· with "public . safety or

the maintenance of public order." ·

The petitioners, on whose behalf this provision is

assailed, are respectively the printer (and · publisher)

,and ~ditor of ·. an English weekly . of Delhi called

Orgamzer, and they pray for the issue of writs of

certiorari and prohibition .. to the Chief Conimissioner, .

Delhi, with . a view "to examine . and review the" le~lity" ·

of and "restrain the operation" . of . and "quash" · the' ·

order made by him on the 2nd March, 1950, ·under ·. the .

impugned section, directing · · them · ~~to . · · submit . • for

scrutiny, in duplicate, before . publication, till : further

orders, all communal matter and news and · · . views

about Pakistan including photographs · and cartoons

other than

those derived from official

sources or SUp-'

. plied by the news agencJ.es .... " The order in question

recites, among other things that the Chief Comn:iis-;

sioner is satisfied· that the Organizer has been

publishing highly • objectionable . matter constituting

a threat to · public law and order and that action ·to

which· refer( .ce has been made is nec~ssary for ·the

purpose of ' preventing or combating activities

v.

TIM Stat. 'If

IM!ri.

Fazl JfliJ.

1950

v.

T h4 Sra/6 of

D1lhi.

/ia<I illi, ].

610 SUPREME COURT REPORTS [1950}

prejudicial to the public safety or the maintenance

of public order. It

is contended on behalf of the

petitioners that notwithstanding these recitals the

order complained against

is liable to be quashed,

because it amounts to an infringement

of the right of

freedom of speech and expression guaranteed by

article 19 ( l) (a) of the Constitution. Articles 19 ( l) (a)

and (2),

-which are to be read together, runs as follows :-

"19. (1) All citizens shall have the right­

( a) to freedom of speech and expression ;

" " "

(2) Nothing in sub-clause (a) of clause (I) shall

affect the operation of any existing law in

so far as it

relates to, or prevent the

State from making any Law

relating to, libel, slander, defamation, contempt of

Cou~t or any matter which offends against ·decency or

morality or which undermines the security

of, or

tends

to overthrow, the

State."

It is contended that section 7 ( l) ( c) of the Act,

under which the impugned order has been made, can­

not be saved by clause (2) of article 19 of the Constitu­

tion, because it does not relate to any matter which

undermines the security

of, or tends to overthrow, the State. Thus the main ground of attack is that the

impugned law

is an infringement of a fundamental

right and

is not saved by the so-called saving clause

to which reference has been made.

There can

be no doubt that to impose pre-censorship

on a journal, such

as has been ordered by the Chief

Commissioner in this

case, is a restriction on the

liberty of the press which

is included in the right to

freedom of speech and expression guaranteed by

article

19 (1) (a) of the Constitution, and the only

question which we have therefore to decide

is whether

clause (2) of article

19 stands in the way of the

petitioners.

The East Punjab Public

Safety Act, 1949, of which

section 7

is a part, was passed by the Provincial

Legislature

in exercise of the power conferred upon 1t

by section 100 of the Government of India Act, 1935,

is

S.C.R. SUPREME COURT REPORTS 611

read with Entry 1 of List II of the Seventh Schedule to

that Act, which includes among other matters "public

order." This . expression in the general sense may be

construed to have reference to the maintenance of what

is generally known as law and order in the Province,

and this

is

confirmed by the words which follow it in

Entry 1

of List II and which have been put within

brackets,

viz., "but not including the use of naval,

military or air

forces or any other armed forces of

the

Union in aid of the civil power." It is clear that

anything which

affects public . tranquillity within the State or the Province will also affect public order and

the State Legislature is therefore competent . to frame

laws on matters relating to public tranquillity and

public order. It

was not disputed

· that under the

Government of India Act,

1935 (under which the

impugned Act

was passed) . it was the responsibility of

each

Province to deal with all . internal disorders

whatever their magnitude may

be and to preserve

public tranquillity and order within the Province.

At this stage, it will

be convenient to consider the

meaning of another expression

"public safety" which

is used throughout the impugned Act and which is also

chosen by its framers for its title. This expression,

though it has

been variously used in different contexts

(see the Indian

Penal Code, .Ch. XIV), has not acquir­

ed a · well-recognized meaning in relation to an Act like

the impugned Act,

as a result of a long course of

legis­

lative practice, and may be taken to denote safety or

security of the State. In this sense, it was used in

the Defence

of the Realm (Consolidation) Act, 1914, as

well as the Defence of India Act, and this is how it

was judicially interpreted in

Rex v. Governor of Worm­

wood Scrubbs Prison (

1

). T4e headnote of this case runs

as follows :-

"By section 1 of the Defence of the Realm (Consoli­

dation) Act, 1914, power was given to His Majesty in

Council 'during the continuance of the present war to

·issue regulations ...... for securing the public safety and

the defence of the realm'

:-

(1)[1 !)l!o) 2 K. B. 305.

7-s s. c. India (N.D.)/58

1950

Brjj Bhushan &

Another

v.

The State of

Delhi.

Fa-i:l Ali J.

1950

Brjj Bhushan (JI

Another

v.

The Slate of

Delhi

foci Ali].

612 SUPREME COURT REPORTS [1950]

Held, that the regulations thereby authorized were

not limited

to regulations for the protection of the

country against foreign enemies, but included

regula­

tions designed for the prevention of internal disorder

and rebellion."

Thus 'public order' and 'public safety' are allied

matters, but, in order to appreciate how they stand in

relation to each other, it seems best to direct our

attention

to the opposite concepts which we may, for

convenience

of reference,

respectively label as 'public

disorder' and 'public unsafety'.

1f 'public safety' is,

as we have seen, equivalent to 'security of the

State',

what I have designated as public unsafety may be

regarded as equivalent to 'insecurity of the State'.

When we approach the matter 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 of 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.

In order to understand the scope of the Act, it

will

be necessary to note that in the Act

"maintenance

of public order" ·always occurs in juxtaposition with

"public safety", and the Act itself is called ''The East

Punjab Public Safety Act." The prominence thus

given

to 'public safety' strongly suggests that the Act

was intended to deal with serious cases of public

disorder which

affect public safety or the security of

the

State, or cases in which, owning to some kind of

emergency or a grave· situation having arisen, even

public disorders of comp?ratively small dimensions

may have far-reaching

effects on the ,security of the State. It is to be noted that the Act purports to

provide "special measures to ensure public safety and

maintenance

of public

order." The words "special

measures" are rather important, · because they show

that the Act

was not intended for ordinary cases or

ordinary situations. The ordinary

cases are provided

for by the

Penal Code and other existing laws, and

..

S.C.R. SUPREME COURT REPORTS 613

with these the Act which purports to be of a temporary

Act

is not apparently concerned.

It is concerned with

special measures which would presumably be required

for special

cases or special situations.

Once this

important fact

is grasped and the Act is viewed

in the

proper perspective, much of the confusion which has

been created in the course of the arguments will

disappear. The line of argument advanced on behalf

of the pc;_titioners is that since the Act has been passed

in exercise· ' of the power granted by the expression

"public order," used in the Government of India Act,

which .is a general term of wide import, and since it

purports

to provide for the maintenance of

· public

order, its provisions are intended or are liable

to be

used for all cases of breaches of public order, be they

small or insignificant breaches or those of a grave or

serious nature. This

is, in my opinion, approaching

the

case from a wrong angle. The Act is a piece of

special legislation providing for special measures

and·

the central idea dominating it is public safety and

maintenance of public order in a situation requiring

special measures.

It

was argued that

"public safety" and "mainten­

ance of public order" are used in the Act disjunctively

and they are separated

by the word

"or" and not "and,"

and therefore we cannot rule out the possibility · of the

Act providing for ordinary

as well as serious cases of

disturbance of public order and tranquillity. This,

as

I have already indicated, is a somewhat narrow and

tf'chnical approach

to the question. In

construing the

Act,

we must try to get at its aim and purpose,

and before the Act

is declared to be invalid, we must

see whether it is capable of being so construed as to

bear a reasonable meaning consistent with its validity.

We therefore cannot ignore the fact that preservation

of public

safety is the dominant purpose of the Act

and that it

is a special Act providing for special

measures and therefore it should not be confused with

an Act which

is applicable to ordinary situations and

to any and every trivial case of breach of public order.

1950

Brij B/iusfian Cl>

Anolhn

v.

T fie State of

Delhi.

Fiu:l Ali J.

1950

hrjj B/slulian 6f

.....,,.,,

v.

Tiu S1au of

INlhi.

Faz.I Ali].

614 SUPREME COURT REPORTS [1950]

In my opinion, the word "or" is us¢d here not so much

to separate two wholly different

c'Oncepts as

to show

that they are

closely allied concepts and can be used

almost interchangeably in the context. I think that "public order" may well be paraphrased in the context

as public tranquillity and the words "public safety"

and "public order" may be read as equivalent to

"security of the State" and "public tranquillity."

I will now advert once more to

clause (2) of

arti­

cle 19 and state what I consider to be the reason for

inserting in it the words "matter which undermines

the security of, or tends

to overthrow, the

State." It

is well recognized in all systems of law that the right to

freedom of

speech and expression or freedom of the press

means that any person

may write or say what he

pleases so long as he does not infringe the law relating

to

libel or slander or to blasphemous, obscene or

seditious words or writings : (see

Halsb\lfy' s Laws of

England, 2nd Edition, Vol. II, page 391).1 This is

practically what has been said in clause (2) of article 19,

with this difference only that instead of using the

words "law relating to sedition," the framers of the

Constitution

have used the words mentioned above.

It

is interesting to note that sedition was mentioned in

the original draft of the Constitution, but subsequently

that word

was dropped and the words which I have

quoted were inserted. I think it

is not difficult to

discover the reason for this change and I shall briefly

state in my own words what

I consider it to be.

, The latest pronouncement by the highest Indian

tribunal

as to the law of sedition is to be found

in

Niharendu Dutt Majumdar v. The King(')

which has been quoted again and again and in which

Gwyer

C. J. laid down that public disorder, or the

reasonable anticipation or likehood

of public disorder,

is the gist of the offence of sedition and

"the acts or

words complained

of must either incite to disorder or

(

1

)

[194•] •. c. ll, 38.

S.C.R. SUPREME COUR'f REPORTS. 61~

must be such as to satisfy reasonable men that that is ·

their intention or tendency." For this. view, the

learned Chief Justice relied on certain observations

of Fitzgerald J. in R. v. Sullivan(

1

)1, and he also

added that he was content to adopt "the words

6£ tliat learned Judge which are to be found in

every book dealing with' this branch of the criminal

law." There is no doubt that what Gwyer C. J. has

stated in that case repre8ents the view of· a number of

·Judges and authors and was also the view of Sir James

Stephen in regard to whom Cave J. in his charge to

the jury

in a case relating to the law of sedition [R. v. ·· Burns (

1

) said :-

"The law upon the question of what is seditious

and what is not is· to be found stated very clearly in a

book

by Stephen J. who has undoubtedly a greater

·kaowledge

of criminal law than any other Judge who

sits

. upon the Bench, and what he has said upon the

.

$Ubject of sedition was submitted to the other Judges,

who sometime back were engaged with him in drafting

a criminal

code, and upon their report the Commission­

ers say

. that his statement of law appears to them to be

stated accurately as it exi5"s at · present."

The decision. of Gwyer C. J. held the ·field for

several years until the Privy Council, dealing with a

case under the Defence of India Rules, expressed the

view in King Emperor v. Sadhashiv Narayan

Bhalerao (

8

)

that the test laid down by

thG learned

Chief Justice . was not applicable in India where the

offence under section 124A of the Indian Penal Code

should be construed with reference to the words used

in that section. They also added :-

''The word 'sedition' does not occur either in sec­

tion 124A or in the Rule ; it is only found as a

marginal note

to section 124A, and

Is not an operative

part of

the section, but merely provides the name by

which the

crime· defined in the section will be known.

(

1

) [1868]'11 Cox. C.C. 44. (') [1886] 16. Cox. 355. (•) 74 I.A. 89.

Ul50

Brij Bhushan 6f

AllDl/ur ·

v.

TlllS1ai. of

Dllhi.

Fa.ti Ali].

1950

Brij Bhushan &

Anothlr

v.

TJr. Stau qf

Delhi.

Fa:/ Ali]·

616 SUPREME COURT REPORTS [1950]

There can be no justification for restricting the con­

tents of the section by the marginal note. In England

there

is no statutory definition of sedition ; its meaning

and content

have been laid down in many decisions,

some of which are referred to by the

Chief Justice, but

these decisions are not relevant when you have a

statutory definition

of that which is termed sedition as

we have in the present case.

Their Lordships are unable to find anything in the

language

of either section 124A or the Rule which

could suggest that 'the

acts or words complained of

must either incite

to disorder or must be such as to

satisfy reasonable men that this is their intention or

tendency.'

"

The framers .of the Constitution must have there­

fore found themselves face to face with the dilemma

as to whether the word "sedition" should be used in

article

19 (2) and if it was to be used in what sense it

was

to be used. On the one hand, they must have

had before their mind the

very

· widely accepted view

supported by numerous authorities that sedition was

essentially an offence agai11.st public tranquillity and

was connected in some way or other with public dis­

order ; and, on the other hand, there was the pro­

nouncement of the Judicial Committee that sedition

as defined in the Indian Penal Code did not necessarily

imply

any intention or tendency to incite disorder.

In

these circumstances, it is not surprising that they

decided not

to use the word

"sedition" in clause (2)

but

used the more general. words which cover sedition

and everything

else which makes sedition such a

serious offence. That sedition does undermine the

security

of the

State is a matter which cannot admit

of much doubt. That it undermines the security of

the State usually through the medium of public dis­

order is also a matter on which eminent Judges and

jurists are agreed. Therefore

it is difficult to hold that

public disorder or disturbance

of public tranquillity

are not matters which undermine the security

of the

State.

S.C.R. SUJ?REME COURT REPORTS 617

It will not be out of place to quote here the follow­

ing

passage from

Stephen's Criminal Law of England

(Vol.

If, pp. 242 and 243) :-

"It often happens, however, that the public peace is

disturbed by · offences which without tending to the

subversion of the existing political constitution practi­

cally subvert the authority of the Government

over a greater or

less local area for a longer or

shorter time. The Bristol riots in

1832

· and the

Gordon riots in 1780 are instances of this kind.

No definite line. can

be drawn between

insurrec­

tions of this sort, ordinary riots, and unlawful

assemblies. The difference between a meeting stormy

enough to

cause well-founded fear of a breach of the

peace, and a civil war the result of which may deter­

mine the

course of a nation's

history· for centuries, is

a difference ·of degree. 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

defirute boundaries.

All

of them haye 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 by

the show and threat of it.

Another

class of offences against public tranquillity

are those in which no actual

force is either employed

or displayed, but in which

steps are taken tending to

cause it. These are the formation of secret societies,

seditious conspiracies, libels or words spoken.

Under these

tcrnal public

arranged.''

two heads all offences against the in­

tranquillity of the State may be

This

passage brings out two matters with remark­

able clarity.

It shows firstly that sedition is essen­

tially an offence against public tranquillity and

secondly that broadly speaking there are two · classes

of offences agaihst public tranquillity : (a) those ac­

companied by violence including disorders which

1950

Brij BhushfJJI &

Anoth.r

v.

The State of

Delhi.

Fazl Ali J.

1950

.Brij B.-l'I

.,,..,,,,,

v.

TA1St.u of

DI/Iii.

FatJ .Ali J.

618 SUPREME COURT REPORTS [1950]

affect tranquillity of a considerable number of persons

or an extensive

local area, and (b) those not

accom­

paI).icd by violence but tending to cause it, such as

seditious utterances, seditious conspiracies, etc. Both

these classes of offences are such as will undermine. the

security

of the

State or tend to overthrow it if left

unchecked, and,

as I have tried to point out, there is · a good deal of authoritative opinion in favour of the

view that the gravity ascribed to sedition is due to

the fact that it tends to seriously affect the tranquil­

lity and security of .the ~tate. In principle, ~en, .it

would not

have

been logical to Icfer to sedioon m

clause (2) of article . 19 and omit matters .which are

no less grave and which have equal potentiality for

undermining the security of the State. It appears

that the framers of the Constitution preferred to adopt

the logical course and

have used the more general and

basic words which are apt to cover sedition as well as

other matters which are as detrimental to the security

of the

State as sedition.

If the Act is to be viewed as I have suggested, it is

difficult to hold that section 7 ( 1) ( c) falls outside the

ambit

of article 19 ( 2). That clause

clearly-states that

nothing in

clause ( 1)

(a} shall affect the operation

of any existing law relating to any matter which

undermines the security of, or tends to overthrow,

the State. I have tried to show that public dis­

orders and disturbance of public tranquillity do

undermine the security of the State . and if the

Act

is a law aimed at preventing such disorders,

it fulfils the requirement of the Constitution. It is

needless to add that the word

"State" has been defined

in article

12 of the Constitution to include

"the

Government and Parliament of India and the Govern­

ment and Legislature of each of the States and all local

or other authorities within the territory

of India or

under the control of the Government of

Jndia."

I find that section 20 of the impugned Act provides

that the Provincial Government may

by notification

I

S.C.R. SUPREME COURT REPORTS 619

declare that the whole or any part of the Province as

may be specified in the notifiGation is a dangerously

disturbed area. This provision has some bearing on

the aim and object of the Act, and we cannot overlook

it when considering its

scope. It may be incidentally

mentioned that

we have been informed that, under

this section,

Delhi Province has been notified to be a

"dangerously disturbed area."

It must be recognized that freedom of speech and

expression is 'one of the most valuable rights guaranteed

to a citizen bv the Constitution and should be

jealously guarded by the Courts. It must also be

recognised that free political discussion is essential for

the proper functioning

of a democratic government,

aad

the tendency af modern jurists is to deprecate censor­

ship though they all agree that "liberty of the press"

is not to be confused with its "licentiousness." But

the Constitution itself has prescribed . certain limits

for the exercise

of the freedom of speech and expression

and this Court

is only called upon to sec whether a

particular

case comes within those limits. In my

opinion, the law which is impugned is fully saved by

article 19 (2) and if it cannot he successfully

assailed·

it is not possible to grant the remedy which the

petitioners arc seeking here.

As has been stated already, the order which is im­

pugned in this case recites that the weekly Organi­

zer has been publishing highly objectionable matter

constituting a threat of public law and order" and

that ·the action which it

is proposed to take against

the petitioners

"is necessary for the. purpose of pre­

venting or combating ·activities prejudicial

to public

safety or . the maintenance of public

order." These

facts arc supported

by an affidavit sworn by the Home . Secretary to the Chief Commissioner, who also states

among other things that the order in question was

passed by the Chief Commissioner in consultation

with the C-cntral Press Advisory Committee, which

is an independent body elected by the AU-India

Newspaper Editors' Conference and is . composed of

8---5 S. C. India (N.D.J/58

1930

Brij BJ111shtJ11 f.!

btit,,,.

v.

TllA Stnttef

D1/hi.

1950

v.

T t.. SlotL ef

Dll/O.

Ttll!l ,(Ji J.

·620 SUPREME COURT REPORTS [m01

reprcsentati ves of some of the lc;.ding papen such

as The Hind•stao Times, Stausmtm, etc. In my

tipinion, there can be no doubt that the Chief Commis­

sioner has purported to act in this case within the

sphere within which he

is pemiitted to act

under the

Jaw, and it is beyond the power of this Court to grant

the reliefs claimed by the petitioners.

In these circumstances, I would dismiss the peti­

tioners' application.

Petition allowed.

Agent for the petitioners : Ganpat RJli.

Agent for the respondent: P. A. Mehta.

QIPN-S1-5 S. C. Indi• (N. D.)/58.-27-2-59-500.