3 S.C.R. SUPREME COURT REPORTS 369

KAMESHWAR PRASAD AND OTHERS

v.

THE STATE OF BIHAR AND ANOTHER

(P. B. GA.JENDRAGADKAR, A. K. SARKAR, K. N.

WANCHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, .JJ.)

Government Servant-Participation in strike.9 or demonstra•

tions-Rule prohibiting strikes or demonstrations pertaining

to conditions of service-Oondtutional validity of rule­

"Detnonstration". meaning of-Bihar Governm,ent Servants'

Conduct Rules, 1956, r. 4-A-Constitution of India,

Art•. 19(1)(a), 19(1)(b), J.9(1) (c), 33, 309.

By a notification dated August 16, 1957, the Government

of Bihar introduced r. 4-A into the Bihar Gevernment

Servani:s' Conduct Rules, ! 956, which provided "No Govern­

ment servant shall partjcipate in any demonstration or resort

to any form of strike in connection with any matter pertaining

to his conditions of service." The appellants filed a petition

before the High Court of Patna under Art. 226 of the Con­

stitution of India challenging the ,validity of the rule on the

grounds, inter alia, that it violated sub-els. (a), (b) and (c) of

Art. 19 and that, in coniequence, the rule was in excess of the

rule making power conferred by Art. 309. The High Court

took the view that the freedom guaranteed under Arts. 19 (1)

(a' and 19 (1) (c) did not include a right to demonstrate or to

strike so far as servants of Government were concerned, 3.nd

that in any case, the impugned rule was saved as impo3ing

reasonable restrictions.

He.ld, that r. 4·A of the Bihar Government Servants'

Conduct Rules, 1956, in so far as it prohibited any form of

dernostration, be it however innocent or however incapable of

causing a breach of public tranquillity, was vioiative of Arts.

19 (1) (a) and 19(l)(b) of the Constitution of India, and since

on t~1e language of the rule as it stood it was not possible to so

read it as to separate the legal from the unconstitutional por­

tion

of the provision, the entire rule relating to participation in

any demonstration must he declared as ultre

vlrcs.

T/1e Superintendant, Central Pri8on, Fetehgarh v. Ram

Marw/iar Lohia, [1960] 2 S. C.R. 821, relie~ on.

The Constitution has under Art. 33, selected two of the

Services uncier the State, the ~trnbers ~f WJiich might b~

196!

February 22.

Karruthwar fraxad

••

~ Staft Qj Bfl1ar

370 SUPREME COURT REPORTS (1962] SUPP.

deprived of the benefit of the fundamental rights guaranteed

to other persons and citizens and also has prescribed the limit~

within which such rcscrictions or abrogation might take place;

but the ocher clau'iscs of servants of Govcrn1nent in co1nmon

with other persons and citizens of the country cannot be exclu·

<led from the protection of the rights guaranteed by part JI I

by reason 1nerely of their being Govern1nent scr\'ants, though

on account of nature and incidents of the duties \vhich they

have to discharge in that capacity, certain restrictions on their

freedoms rnight

have to be imposed.

Heid, further, that the rule in so far as it prohibited

strikes v.•as valid, because there was no fundamental right t0

resort to a strike.

All India Rllnk /~1npl1Jyers' Asaocir1tion v. _,

1

ationrzl Indus·

trial Tribunal, (1962] 3 S.C.R. 269, followed.

Civil Az>pellate .l'llrisdfrtion: Civil Appeal Xo.

41.l of 1959.

Appeal from the judgment and decree dated

,July 7, 19.~8, of the Patn:t High Court in ~I. ,J.C.

~o. 456 of 1957.

B. P. Jfoheshwari, for the appellants.

S. P. Va;-ma, for the rcspowlrnts.

B. Sen and R.H. Dhchar, for the Intervener

No. l (Cnion of India).

A. S. R. Chari, M. K. Rammni1rthi, R. K. Garg,

]). P. Singh and S. C. Agarwal, for the Inwn·ener

No 2 (E. X. Joseph).

1962. February 22. The Judgment of the

Court was delivered by

AYYA:XGAR, J.-This appeal comes beforo. us

by virtue

of

a certificate of fitness grnntNI under

Art. 132 of the Constitution by the High Court of

Patna. The question involve<! in the app<•al is a

8hort ono but is of considerable puhlic importance

and of great constitutional significance. ft. i~ con·

cerned with the constitutional validity of r. 4·A,

•

l

•

-

3S.C.R. SUPREME COURT REPORTS 371

which was introduced into the Bihar Government

Servants' Conduct Rules, 1956; by a notification

of the Governor of Bihar dated August 16, 1957

and reads:

"4~A.-Demonstrations and strikes.-

No Government servant shall participate

in

any demonstration or resort to any

form of

strike in connection with any matter pertain-

ing to his conditions

of

service." ·

Very soon after this rule was notified the six

appellants, the first

of whom is the President of the Patna Secretariat Ministerial Officers' Association

and the others are Assistants or Clerks under the

Bihar State Government, filed on August 26, 1957,

a petition before

the High

Court of Patn'l under

Art. 226

of the

Constitution challenging the validity

of the rule on various grounds including inter alia

that it interfered with the rights guaranteed to the

petitioners by sub-els. (a), (bl and (c) of cl. (l) of

Art. 19 of the Constitution of India and that in

consequence the rule was in excess

of the

rule­

making power conferred by Art. 30:J of the Consti­

tution which "·as the source of the authority enabl­

ing service-rules to be framed. They prayed for an

order restraining the respondent-State from giving

effect

to the rule and to desist from

interfering with

the petitioners' right to go on strike or to hold

demonstrations. The learned Judges

of the High Court who heard the petition were of the opinion

that the freedom guaranteed under Art. 19( l)(a) and

19(l)(cl

of the

Constitution did not include a right

to resort

to a strike or the right to

demonstnte so

far as sevants

of Government were concerned.

·The

learned Judges however, further considered the

validity

of the rule on the assumption that the

freedoms enumerated in sub-els. (a)

and (c) of Art.

19(1) did include those rights.

On this basis they

held

that the rule impugned was saved as being reason~ble restraints on these guaranteed freedoms,

1962

Kamechwar Prasad

v.

The Slate of Bihar

A ;:yan:ar J,

1962

ltameJhrt;Qr P,au1d

v.

The Stale of Bihar

A}yan111f' J.

372 SUPREME COURT REPORTS [1962) SUPP.

The learn°d Judges therefore directed the petition

to Le di~missed, but on application by the a ppell:ints

thoy granted 11 certificate und<'r Art. 132 of the

Constitution to enable them to approach tliis Court.

At this stage it is necessary to mention that a

similar conclusion as the one by the High Court of

Patna· now under appeal wa.s reached by the learned

Judges of tho High Court of Romhay before whom

the constitutional validitv of a rn le in identical

terms as r. 4A of the Bihar Rul<'s was impugned.

The correctneRS of th:it decision is unrfor chnll<'nge

in this Court in S.L Ps. (Civil) Nos. 40\J »nd 500 of

19til and the appellants in that app1·al sought leave

to intervene in this appeal and we ha,_.,, permitted

them t-0 do RO, and we heard '.\Ir. Chari-learned

Crmnoel for the int~rveners in furl her ~upport of

the appeal.

Before entering on a di~cussion of tho a,rgu­

ments adv:mced before us it might be eonvenient

to state certain matter~ which are common ground

and not in controversy :

(I) The impui,,'lled rule 4-A was framed under

Art. 309 of tho Con8titution which enact~. to quote

the material words :

"300. Subied to tho provision" of this

Constitution, Acts of the appropri11te Legisla­

ture may regulate the rceruit1rn·nt, and condi­

tions of service of persons appointed, to public

. ,,

scrvtC(\,S ...•.....•.....

ancl provision i~ made hy tho proviRo to thi> Article

for tlw Governorn of States to make JU!t's until

"provision in that ~chalf i~ macle .!':V or unrfor .an

Act

of the

appropriate Leg1slalur<, . We are <lrnwmg

att~ntion to the Artidc under which th(' rnlo is

mad(' for the purposP of pointing out that the rule­

making power being snhj.,ct to the Cntrntit.utio1;,

the validit.y of the rulo would have to b" tested

by the saml' criteria as aro applicable to all !:1~s

and subordinate legislation. In other wor<ls, 1f

•

.•

'

•

3 S.C.R. SUPREME COURT REPORTS 373

there are any constitutional limitations npon law­

making, such of them as are appropriate to the

subject dealt with by the rule would be applicable

to them.

(2) It would be seen that the rule prohibits

two types

of activities, both in connection with

matters pertaining to the conditions of service (i) the

holding of demonstrations,

and (ii) resort to strikes

to achieve the purpose indicated. This

Court had,

in

All India Banlc

Emplnyees' Association v. National

Industrial Tribunal (') (Bank disputes Bombay

etc.),

to consider the question as to whether the

right to form an association

guaranteed by Art.

19( l)

(c) involved or implied the right to resort to

a strike

a,nd answered it in the negative. In view

of this decision learned Counsel for the appellants,

as also

Mr.

Chari for the interveners confined their

arguments

to the question of the legality of the

provision as regards the right

"to hold demons­

trations". The validity of the rule therefore in so

far as

it prohibits strikes, is no longer under

challenge.

The argument addressed

to us on

bl'half of the

appellants

may be shortly stated thus : The

eervice­

rule being one framed under Art. 309 is a "law"

within the definitiun of Art. 13(3) of the Constitu­

tion and it would have to be pronounced invalid

to the extent that it is inconsistent with the provi­

sions of Part III. of the Constitution Art. 13(2).

Article 19(1) confers on all citizens the right by

sub-cl. (a) to freedom of speech and expression, and

by sub-cl. (b) to assemble peacefully and without

arms, and the rightto"demonstrate"would be covered

by these two sub-clauses. By the ,mere fact that a

person enters Government service, he does

not cease to be "a citizen of India", nor does that

disentitle him to claim the freedoms guaranteed

to every citizen. In fact, Art. 33 which enacts :

"Parliament may by law determine to

(I) CJ.A; 154 of 1961 (Not yet reported).

1962

Kameshwar Prasad

v.

The State of B1'har

Ayyanzar J.

JYG2

Kam11hw.rr l'rasad

••

The Sl•U of Bihar

. .i/~·a :;ar J.

374 SOPREME COURT REPORTS (1962] SuP~.

wh11t extent any of the rights conferred by

this Part shall, in their application to the

members

of the

Armed Forces or tho Forces

charged with maintenance of public order, be

restricted or abrogated so as to ensure the

proper discharge

of their duties and the main­

tenance

of discipline among them.,.

obviously

procC'eds on the basis of personH in the

service of Government being entitled to the Protec­

tion of tho fundamental rights guaranteed by Part

III of the Constitution and iB inserted to <·nable

special provi;ion being made fur the abrogation, if

necessary, of thn guarant-0ed freedoms in the ease

of two special scrd<;cs only, viz., the army :u:d the

police force. The approach

to the

queRt.i<in regard­

ing the constitutionality of the rule should be

whether the ban that it imposes on demonstrations

would be covered by the limitation of the guaran­

teed rights contained in Art.

19(2) and

19(::!). In

regard to both these clauses the only relevant

criteria which has been suggested by the respon­

dent-State iH that the rule is framed •·in the interest

of public order". A demonstration may be defined

as "an expres8ion of one's feelings by outward

signs". A demonstration such as is prohibited by,

the rule may be

of the

most innocent type-peaceful

orderly such as the mere wearing of a badge by a.

Government servant or even by a silent afSem bly say

outside oflice hours-demonstrations which could

in no sense be suggested to involve any breach of

tranquillity, or of a type involving incitement to or

capable of lea.ding

to disorder. If the rule had

confined itself

to

demonstrations of type which

would lead

to disorder then the validity of that rule

could havo been sustained

but what the rule does is

the imposition of a blanket-ban on all

demonstra­

tions of whatever type-innocent ae well as other­

wise-and in consequence its validity cannot be

upheld.

Before considering these arguments of learned -

-

3 s.c.R. SUPREME COURT REPORTS 375

Counsel it is necessary to deal with the submission

by Mr. Sen who appeared for the Union of India

who intervened in this appeal which,

if accepted,

would cut

at

the· root of the entire argument for

the appellant.

He endeavoured to persuade us to

hold

that though the power to frame

Service Rules

under Art. 309 was subject to the Constitution with

the result that the rules so framed ought not to be

contrary to any constitutional provision, still it did

not follow

that every one of the fundamental rights

guaranteed

by Part III could be claimed by a

Government servant.

He urged that as a person

voluntarily entered Government service he must by

that

verj act be demeed to have consented to errter

that service on such reasonable conditions as might

be framed ·for ensuring the proper working of the

administrative machinery

of the Government and

for the proper maintenance

of discipline in the

Service itself. Under Art. 310 every office is held,

subject

to the provisions of the Constitution, at the

pleasure of

the President or of the Governor as the

case may be,

and

provided a rule regulating the

conditions of service was reasonable

and was calcu­

lated to ensure the purposes above-named he sub­

mitted that its reasonableness and validity could

not be tested solely by reference to the criteria laid

down in

ols.(2}, (3) or (4) of Art. 19.

In this connection we were referred to a few

decisions of the American

Courts· for the proposi­

tion

that the constitutionality of special rules

enact­

ed for the discipline of those in the service of Govern­

ment had to be tested by criteria different from those

applicable to ordinary citzens. Thus in 'f!Jx Parle;

Curtis (') the constitutionality of a law prohibiting

officers

or employees of the

United S~ates from

"requesting, giving to or receiving from any other

officer or employee

of the government any money . or property or other thing of value for political

purposes," under a penalty of being discharged and,

on conviction fined, was upheld.

In the majority (I) 27 Law. Ed. 232, 106 U. S. 371.

196B

Kameshwar Prastld

v.

Tiu S t•I• of Bihar

Ayyangar J.

1962

KouuslrUJar PrOJ•i

v.

Tht Stak of Bilw

Auyongar J•

376 SUPREME COURT REPORTS f l!l62] SUPP.

judgment which was delivered by Waite, C.J., the

rcasonablen('ss of such a rule is pointed out. It is

however manifest that no fundamrntal right could

be claimed to havP been infringed by the provision

there impugned.

In

United l'ublic Worker" v.

Mitdull ('), which was another caso to which our

attention was invited, ono of the questiuns raised

related to the validity

of an Act of Congress (The

Hatch

Act, 1940) making it unlawful for the emplo­

yees in the Executive Branch of the .Federal

Government

to take

part in political campaigns 11.nd

making the same the basis for disciplinary depart­

mental action.

It was

eontended that thi" wa8 an

interference with the right

of free speech as

well as

with political rights. l\eed, J., who spoke for the

majority obHerved:

"Tho interference with free cxpreSBion

has to be seen in comparison with the require­

ml'nts

of orderly management of administra­tive personnel. ....... _.,,We accept appellant's

contention

that the nature of political rights

reserved

to the

people are involved. The

righ~ claimed as inviolate may be stated as

the right.of a citizen to aot as a party official

or worker to further his own political views.

Thus

we

h11.ve a measure of interference by

the Hatch Act and the Rules with what other­

wise would be the freedom of the civil servant

under the .First Amendment. And, if we look

upon due process as a guarantee

of freedom in

those fields, there

is a corresponding impair­

ment

of that right under the Fifth

Amend­

ment .......... ,_ .... We do not find persuation in

appellants' argument that such activities

during free time are

not subject to regulation

even though admittedly politieal activitos

cannot be indulged in during working hours.

The influence

of politieal activity by gc,vern­

rnent employees,

if evil in

its effects on tho

(I) 91 Law. Ed. 75·1, 330 t..:.S. 75. -

'

3S.C.R. SUPREME COURT REPORTS

'

.. "

377

service, the employees or people dealing with

them, is hardly less so because

that activity

takes place

after hours ............ It is accepted

constitutional doctrine

that these fundamental

human rights are not absolutes

............ The

essential rights

of the First Amendment are

subject to the elemental need for

O!der with·

out which the guarantees of civil rights to

others· would be a mockery".

Mr. Sen also referred us to Mc Auliffe v. New

Bedford (

') which is cited at p.791 in 91 Law. Ed.

in support

of the position that servants of

Govern­

ment formed a class and that conditions of service

imposed upon them which

are reasonable and necessmy to ensure efficiency and discipline cannot

be questioned on the ground

of their contravening

any constitutional guarantees. Mr.

Sen drew our

attention in particular to the following passage in

the judgment of-Holmes, J. :

"There is nothing in the Constitution or

the

statute to prevent the city from attaching

obedience

to this rule as a condition to the

office of policeman, and making it part of the

good conduct required. The petitioner may

have a constitutional right to talk

polities,

but he has no constitutional right to be a

policeman. There are few employments for

hire in which the servant does

not agree to

suspend his constitutional right of free speech,

as well as of idleness, by the implied terms of

his contract. The servant c1mnot complain,

as he takes

the employment on the terms

which are offered him.

On the same principle,

the city

may impose any reasonable condition

upon holding offices within its control. This · condition seems to us reasonable, if that be a

question open

to revision here (The Police

Regulation prohibiting mem hers of the

depart­

( I) (1892) 155 Mass. 216.

1962

Kameshwar Prasad

v.

The State of Blha•

Ayyanzar J.

1961

KtJmtshwar Pr"•ad

..

Thi Stu1 of Billi"

.. ,_,.,,,., J

:ns SUPREME COURT REPORTS (1962] SUPP.

ment from soliciting money etc. for political

purposes)" .

As regards t hesc decisions of t.he American

Courts, it should be borne in mind that though the

First Amendment to the Constitution of the United

State reading "Congress shall make no law .........

abridging the freedom of speech ......... " appears to

confer no power on the Congress to impose any

l'<'Striction on the exercise of the guaranteed right,

~till it has always been u11derstood that the free­

dom guaranteed is subject to the police power-the

scop:• of which however has not been ddined with

precision or uniformly.

It is on the

basis of the

police power to abridge that freedom that the cu118ti­

tutional validity of law~ penalising libels, and those

relating to sedition, or to obscene publicatio11s etc.,

has been sustained. The resultant flexibilit.y of the

restrictions that could be validly jmposPd renders

the American deci;.io11s inapplicable to and without

mnst use for resolving the que~tions arising under

Art. 19('l)(a) or (b) of onr Constitntion wherein the

ground-; on which limitations might be placed on

the guaranteed right are set out with definiteness

and precision.

Learned Counsel iavited our attention also to

the decision of this Court in BrJ/11.kotaiah v. Union

of India(') to a Rimilar effect. But it must how­

ever, be noted that in Balakotaiah's case the

validity of the rule wa.s not challenged.

In further support of his submis8ion that the

fre•cdoms guaranteed to citizens by Art. J 9 c:annot

in their very nature, be applied to those who are

employed in governmt-nt St>rvicc our attention was

invited

to

sub-els. (d), (c) and (g) of d. (1). It was

said tha.t a Government servant who wa.8 post~d to

a partieular place could obviously not cxercisP tho

freedom to move throughout the t·;rritory of India

and similarly, his right to reside and settle in any

part of India could be said t.o be violated by his

(I) {1958] S. C. R.I05i.

3 S.C.R. SUPREME COURT REPORTS 379

being posted to any particular place. Similarly,

so long as he was

in government service he would

not be entitled to practise any profession or trade

and it was therefore urged that to hold that these

freedoms guaranteed under

Art.. 19 were applicable

to government servants would render public service

or administration impossible. This line of argu­

ment, however, does not take into account the

· limitations which might be imposed on the exercise

of these rights by els. (5) and (6) under which res­

trictions on the exercise of the rights conferred

by sub-els. (d)

and (g) may be imposed if reasonable

in the interest

of the general public.

In this connection he laid stress on the fact

that special provision had been made in regard to

Service under the State in some of th) Artic]es·in

Part III-such as for instance Arts. 15, 16 and

18(3) and (4)-and he desired us therefrom to

draw tho inference that the other Articles in which

there was no specific reference to Government

servants were inapplicable to them. He realised

however,

that the implication arising from Art. 33

would run counter to this line of argument but as

regards this Article his submission was

that it was

concerned solely

to save Army Regulations

. which

permitted detention in a manner which would

not be countenanced by Art. 22 of the Constitution.

We find ourselves unable to accept the argument

that the Constitution excludes ·Government

ser­

vants as a class from the protection of the several

rights guaranteed

by the several Articles in Part

III save in those cases where such persons were

specifically named.

In our opinion, this argument even if

other­

wise possible, has to be replll!ed in view of the

terms

of Art. 33. That Article selects two of the Services under the State-members oflthe armed

forces charged with

the maintenance of public order

and saves

the rules prescribing the conditions of

service in regard to

them-from invalidity on the

. ground of violation of a.ny of the funda.menta.l

196%

Kameshwar Prasai

v.

The State of Bihar

Ayyangar J,

J96Z

E011Ushwar Prasad

v.

Tiu Stat1 of Bihar

AJ;·angar J.

380 SUPREME COURT REPORTs [1962) SUPP.

rights guaranteed by Part III and also d<>fines the

purpose for which ~uch abrogation or restriction

might take place, this being limited to ensure the

prop!Jr di~charge of duties and the maintenanco of

discipline among th('m. The Article having thus

selected the Services mem hers of which might Le

deprived of the bcndlt of the fundamental rights

guaranteed to other persons and citizens and also

having prescribed tho limits within which such

rPStrictions or abrogation might take r)ace, we

congider that other classes of 5ervants o Govern·

mcnt in common with other persons and other citi­

zens of t.hc eountry cannot Le excluded from the

protection

of the rights guaranteed by

Part HI by

reason merely of their br.ing Government servants

artd the nature and inri<lenta of th) dnties which

they have to diecharge in that capacity might ncce­

ssarilv involve restrictions of certain freedoms a8

we have pointed out in relation to Art. 19 ( l) (c J

and (g ).

The first question that falls to be considered

is whether tho right to mako a "demonstration"

is covered by e·1thcr or both of the two freedoms

guaranteed by Art. l!J(l)(a) and 19(l)(b). A "elem·

onstratio11"

is dcfinrd

in tl1e Concise Oxford Dictil1·

nary as "an outward exhibition of feeling, as an

exhibitio11

of

opinion on political or other question

especially a public meeting or procession". In

Webster it is defined as "a public exhibition by a

party, sect or society......... as by a parade or

mass-meeting". Without going very much into

the niceties of language it might be broadly stated

that a d1•monstration is a visible mauifcstation of

the feelings or sentiments of an individual or a

group.

It is thus a. communication of

one"s ideas

to others to whom it is intended to be conH•ycd.

It is in effeot therefore a form of Hpecch or of

expressiotl, because speech need not be vocal since

signs

made by a dumb person would also be a form

of speech. It

ha.a however to be recognised that

-

3 S.C.R. SUPREME COURT REPORTS 381

the argument before us is confined to the rule pro­

hibiting demonstration which is a form of speech

and expression or

of a

mnre assembly and speeches

· therein and not other forms of demonstration

which do

not

fall within the content of Art. l.9(l)(a)

or 19(l)(b). A demonstration might

take the form

of an assembly and even then the intention is to

convey to the person or authority to whom the

communication is intended the feelings

of the group

which assembles.

It necessarily follows that there

are forms of demonstration which would fall within

the freedbms gu'1rante<Jd by Art. 19( 1 )(a) and· 19( l)

(b).

It is needless to add that from the very

nature of things a demonstration may take various

forms;

It may be noisy and disorderly, for instance

stone-throwing

by a crowd may be

cit-,d as. an

example of a violent and disorderly demonstration

and this would not obviously be within Art.

19(l)(a) or (b).

It can equally be peaceful and

orderly such

·as happens when the members of the

group merely wear some badge drawing attention

to their grievances.

If thus particular forms of demonstration

fall within the scope

of Art. 19(l)(a) or 19(l)(b),

the

next question is whether r. 4-A, in so far as

it lays an embargo on any form of demonstration for

the redress of the grievances of Government

em­

ployees, could be sustained as falling within the

scope

of Art. 19(2) and (3).

These clauses run:

"19. (2) Nothing in sub-clause (a) of

clause ( 1) shall affect the operation of any

existing law, or prevent the State from mak­

ing any fa w, in so far as such law imposes

reasonable restrictions

on the exercise of

the

right conferred by the said sub-clause in the

interests of the security of the State, friendly

relatfons with foreign States, public order,

decency

or morality, or in relation to

' ' '

196B

Kameahwar Prasad

v.

Tiu Stat11 of Bihar

Ayyangar J.

1962

K amts!ztcar Prasud

v.

Tht Stal< of Billa•

Ayyongar J,

38~ SUPRE:\iE COCRT REPORTS [1962] SUPP.

contempt of court., <lcfamatio11 or incitement to

an offence.

(.'l) ~othing in sub·clause (h) of the said

clause shall affi>et the opemtion of any exis­

~ing law in so far as it imposes, or prevent

the State from making any law imposing,

in the interests of public order, reasonabfo

restrictions on the cxerciso of tho right con­

ferred by the said sub·clause."

The learned Judges of the High Court have, as

stated earlier, ·upheld the validity of the rule hv

considering them

as

roasonable rPstrictiohs in t.h·e

interest of public order. Tn coming tot.his co1wl11-

sion the learned Judges of the High Court

did

not have the benefit of the exposition

of the meaning of the expression

"in the int Nest

of public order" in these two clauses by thiR Court

in Snperi111e11dent, Central Prison, Jiutthyarh v.

Ram }rfanolwr Lohio ('). Speaking for the Court

Subba Rao, ,J., summarised his co11cluHion on tlrn

point in these terms:

"Public order (Art. 19(2) and (!l)) is syno.

nymous with public safety and tranquillity.

It is tho absence of disorder involving breach­

es of local significance in contradistinctfon

to national upheavals such as revolution,

civil strike, war affecting the security of the

Stat1""

The learned Judge further stated that in order that

a legislation may be "in the interests of public

order" there must he a proximate and reasonable

nexus bP.twe!'n the nature of the speech prohibited

and public ordAr. The learned .T urlge reject<'d tho

argument that the phra~n "in the interests of public

order" which is wider than the words "for the

maintenance of public or1ler" which were found in

th<> Article a• originally cnai·ted-thNeby sanctioned

the enactment of ii law which reHtricted the right

merely because the Hpcech had a tendency however

(I) [19'l0) 2 S.C.R. 82J.

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3 S.C.R. SUPREME COURT REPORTS 383

remote to disturb 'public order. The connection has

to be intimate, real and rational. The validity of

the rule now impugned has to

1

le judged with

reference to tests here propounded.

If one had to consider the propriety of the

rule as one int.ended to. ensure proper discipline

a part from the limitations on law :making, in a

Government servaut and in the context

of the other

provisions made for the making ofrepresentations

and

. for the redress of services, grievances, and apart from

the limitiations imposed by the Constitution there

could be

very little doubt nor would it be even open

to argument

that the rule now impugned was Loth

reasonable

and calculated to ensure discipline in

the·

Services and in that sense conducive to ensure effi­

ciency in the Service. Based on this aspect of the

function of the rule the argument as regards Art.19(2)

& (3) was put on a twofold basis: (1) that the main­

tenance of public order was directly dependent

upon

the existence of a body of Government

ser­

vants who were themselves subject to strict dis­

cipline. In other words, the maintenance of dis­

cipline among Government servants not only contri­

buted to the maintenance ofpublic order but· was

a sine

qua

Mn of public order. (2) The other aspect

in which

it was presented was the negative of the

one just now mentioned

that if Government

ser­

vants were ill-disciplined and were themselves to

agitate in a disorderly manner for the redress of

their service grievances, this must lead to a demo­

ralisation of the public and would be reflected in

the disappearance of public order ..

We find ourselves unable to uphold this sub·

mission on behalf uf t.he State. In the first place

we are not here concerned with any rule for ensur­

ing disciplin~ among the police, which is the arm of

the law primarily charged with the maintenance of

public order. 'l'hc threat to public order should

therefore arise from the nature

of the demonstration

prohibited. No doubt,

ff the rule were so fral)'.leq

1962

Kameshwar Prasad

v.

The Stale of Bihar

Ayyangar J.

• 96Z

Ko~1hwar Pra1ad

v.

Tht Stalt of Bi/111'

A»angar J.

384 SUPREME COURT REPORTS [1962] SUPP .

as to single out those types of demonstration which

were likely to lead to a distnrhance of public tran.

qnillity or which would fall under the other limiting

criteria specified

in Art. 19(2) the validity of the

rule could

have been sustained. The vice of the

rule, in our opinion, consists in this that it. lays a

ban on overy type of demonstration-bi> the Harne

however innocent and however incapable of causing

a breach of public tranquillity and does not confine

itself

to those forms of demonstrations which

might lead

to that result.

Learned

Counsel for the respondent and those

who supported

the validity of the rule

could not

suggest that on the language of the rule as it

stood, it was poBBible to read it as to separate the

legal from

the unconstitutional portion of the provi­

sion. As no suoh

B<>paration is possible the <'ntire

rule has to be struck down as uneonstitutional.

\Ve have rejected the broad contention that

persons in the servicn of government form a class

apart to whom the rights guaranfre<l by Part III

do not, in general, apply. By aee('pting the conten­

tion that the freedoms guarant.,ed by Part HI and

in pa.rticular those in Art. J)( I)( a) apply to the

servants of government we should not be taken to

imply that in rolation to this class'Of citizen the

responsibility arising from oflicial position would

not

by itsolf impose

some limitntion~ on tho excr­

dse of their rights as citizens. For inst:rncc, s.!i4 (2)

of the Income-tax Act, 1922, enacts:

"If a public servant discloses any parti­

culars contained in' anv such statement.,

return, accounts, docum,;nts, cvidcncc affi­

davit, deposition or record, ho shall be punish­

able with imprisonment which may extend to

six months, an<l shall alHo be liable to fine."

Section 128(1) of the Representat.icm of thn People

Act, 19!il, enjoins on every officer, clerk, agent etc.

who performs

any duty in connection with

tpe

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3 s.c.R. SUPREME couRT REPoR±s 3s5

recording or counting of votes at an election shall

maintain the secrecy of the voting and shall not

communicate to any person any information calcu­

lated to violate such secrecy, and visits the breach

of the rule by punishment with imprisonment for a

term which inay extend to three months or with fine.

It cannot be contended that provisions on these or

similar lines in these or other enactniim ts restrict

the freedom of the officers etc. merely because they

are prohibited from communicating information

which comes

to them in the course of the

performa­

nce of the duties of their office, to othtrs. The

information

having been obtained by them

'in the

course of their duties by virtue of their official

position, rules or provisions of the law prescribing

the circumstances in which alone such information

might be given

out or used do not infringe the right

of freedom of speech as is guaranteed by the

Con·

stitution.

We would therefore allow

the appepl in part

and grant the appellants a declaration that r. 4A in

the form in which it now stands prohibiting

"any

form of demonstration" is violative of the appel­

lants' rights under Art. 19(1)(a) & (b) and should

therefore be

stuck down. It is only necessary to

add that the rule, in so far as it prohibits a strike,

cannot be struck

J.own since there is no fundamen­

tal right · to resort to a strike. As the appel­

lants have succeeded only in part, there will be na

order as to costs in the appeal.

Appeal allowed in part.

W62

--

Kameshwar Prasad

v.

Tbe State of Bihar

AyyangarJ.