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PETITIONER:

STATE OF MADRAS

Vs.

RESPONDENT:

V.G. ROW.UNION OF INDIA & STATE IntervenersOF TRAVANCORE

DATE OF JUDGMENT:

31/03/1952

BENCH:

SASTRI, M. PATANJALI (CJ)

BENCH:

SASTRI, M. PATANJALI (CJ)

MAHAJAN, MEHR CHAND

MUKHERJEA, B.K.

DAS, SUDHI RANJAN

AIYAR, N. CHANDRASEKHARA

CITATION:

1952 AIR 196 1952 SCR 597

CITATOR INFO :

RF 1954 SC 92 (35)

RF 1954 SC 229 (28)

RF 1956 SC 479 (19)

R 1956 SC 559 (4,8,9)

E&R 1957 SC 896 (10)

E 1958 SC 578 (169)

F 1958 SC 731 (21)

F 1959 SC 300 (5)

R 1960 SC 468 (6)

R 1960 SC1080 (40)

R 1960 SC1124 (25,42,64)

R 1961 SC 448 (7)

R 1961 SC 705 (5,11,20)

R 1961 SC 884 (24)

R 1962 SC 123 (15)

R 1962 SC 263 (25)

R 1962 SC 305 (29)

A 1962 SC 316 (35,36)

R 1962 SC1371 (34,64,65,66)

R 1963 SC 996 (2)

R 1964 SC 416 (11)

RF 1967 SC 829 (6,7)

R 1968 SC 445 (14)

RF 1970 SC 898 (58)

R 1970 SC1157 (12)

R 1970 SC1453 (15)

R 1971 SC 530 (259)

R 1971 SC 966 (7)

R 1971 SC1667 (10,25,27)

RF 1973 SC 947 (8)

RF 1973 SC1461 (594,1547)

F 1975 SC 550 (8)

RF 1976 SC1207 (300)

RF 1977 SC1825 (29)

R 1978 SC 597 (132)

F 1978 SC 771 (15,22)

R 1978 SC1457 (62)

R 1979 SC 25 (31)

R 1980 SC 898 (70)

RF 1980 SC1992 (12)

R 1981 SC 873 (19,23)

RF 1981 SC1030 (16)

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MV 1982 SC1325 (32)

R 1984 SC 882 (3)

R 1984 SC1213 (8)

RF 1985 SC 551 (35)

R 1986 SC 515 (80)

R 1986 SC1205 (17)

ACT:

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-bear-

ers--Validity of law--Unreasonable restriction on right to

form associations--Constitution of India, art. 19 (1) (c),

(4).

HEADNOTE:

Section 15 (2) (b) of the Indian Criminal Law Amendment

Act, 1908, as amended by the Indian Criminal Law Amendment

(Madras) Act, 1950, included within the definition of an

"unlawful association" an association "which has been de-

clared 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 a bearing on the

598

necessity therefor and (ii) fix a reasonable period for any

officebearer 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. 16 A the Government was required after the expiry

of the time fixed in the notification for making representa-

tion 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 notification.

There was however no provision for adequate communication 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 unconsti-

tutional and void:

Held, (for reasons stated below) that s. 15 (2)(b)

imposed restrictions on the fundamental right to form asso-

ciations guaranteed by art. 19 (1) (c), which were not

reasonable within the meaning of art. 19 (4) and was there-

fore unconstitutional and void. The fundamental right to

form associations or unions guaranteed by art. 19 (1) (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 fiel

this, that the vesting of the authority in the executive

Government to impose restrictions on such right, without

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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 im-

posed on the fundamental right under art. 19(1)(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 materi-

als 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 nar-

rowest limits.

In considering the reasonableness of laws imposing

restrictions on fundamental right, both the substantive and

procedural aspects of the impugned law should be examined

from the point of view of reasonableness and the test of

reasonableness, wherever 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 restric-

tions 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

599

enter into the judicial verdict. In evaluating such elu-

sive 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.

A.K. Gopalan v. The State ([1950] S.C.R. 88) and Dr.

Khare v. The State of Punjab ([1950] S.C.R. 519) distin-

guished.

JUDGMENT:

M. C, Setalvad, Attorney-General for India, (S. Govind

Swaminathan and R. Ganapathi Iyer, with him) for the appel-

lant (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 lyer, (Advocate-General 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

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Government Order No. 1517, Public (General) Department,

dated 10th March, 1950, whereby the State Government de-

clared 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' Registra-

tion Act, 1860, applied to the High Court on 78

600

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 there-under 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 (Raja-mannar 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, the

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 consti-

tutes 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 polit-

ical 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

601

(d) to promote, encourage and popularise art, literature

and drama.

It was, however, stated in a counter-affidavit filed on

behalf of the appellant by the Deputy Secretary to Govern-

ment, Public Department, that, according to information

received by the Government, the Society was actively helping

the Communist Party in Madras which had been declared unlaw-

ful in August 1949 by utilising its funds through its Secre-

tary 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 peti-

tion, 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 combination or body of

persons whether the same be known by any distinctive name or

not; and

(2) "unlawful association" means an association(a) which

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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 Pro-

vincial 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 official Gazette declare such association to be

unlawful."

The amending Act substituted for clause (b) in Section

15(2) the following clause :--

602

"(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 administra-

tion of the law, or has such interference for its object".

For the old section 16, sections 16 and 16 A were substi-

tuted as follows:

"16. (1) A notification issued under clause (b) of sub-

section (2) of section 15 in respect of any association

shall-

(a) specify the ground on which it is issued, the rea-

sons 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 16 A the Government is required, after

the expiry of the time fixed in the notification for making

representations, to place before an Advisory Board consti-

tuted by it a copy of the notification and of the represen-

tations, 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

603

concerned, the Government is required to cancel the notifi-

cation.

There is no amendment of section 17 which prescribes

penalties by way of imprisonment or fine or both for member-

ship 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 exer-

cised, by way of application, within thirty days of the

notification in the official Gazette, to the Chief Judge of

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the Small Cause Court or the District Judge according as the

place notified is situated in the Presidency Town or out-

side, 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 notifi-

cation 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 unlaw-

ful 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

604

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 con-

sidered in the light of the provisions of the amended Act

when the petition came up for hearing 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

certain specified grounds in relation to them, those grounds

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 before us as to whether or not

the grounds referred to in section 15 (2) (b) as amended are

justiciable 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 Govenment

the test of unlawfulness, rendered the insertion of the

words "in its opinion" unnecessary and, indeed, inappropri-

ate, 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 officers

is still the determining factor in notifying a place under

section 17 A (1) and in forfeiting the movables found there-

in under section 17B (1) or the funds of an unlawful associ-

ation 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 notification in

case the Board found there was no sufficient cause for

declaring the association as unlawful also pointed, it was

urged, to the same conclusion. The contention is not

605

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without force, and the position was not contested for the

respondent. It may, accordingly, be taken that the test

under section 15 (2) (b) is, as it was under the old

section 16, a subjective one and the factual existence or

otherwise 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 legisla-

tive 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

imposes, or prevent the State from making any

imposing, in the interests of public order or morality,

reasonable restrictions on the exercise of the right con-

ferred by the said sub-clause."

It was not disputed that the restrictions in question

were imposed "in the interests of public order". But, are

they "reasonable" restrictions within the meaning of 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 undercover 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 judgment, it cannot desert its own duty to

determine

606

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 the 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 publi-

cation 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 penal-

ties in the meantime, and (3) the denial to the aggrieved

person of the right to appear either in person or by 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 be-

tween the two classes of unlawful associations mentioned in

section 15 (2) (a) and (b). The other learned Judges did

not, however, agree with this view. 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

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agreeing with the conclusion 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 ease (1) to

define the scope of the judicial review under clause (5) of

article 19 where the phrase "imposing reasonable restric-

tions on the exercise of the right" also occurs, and four

out of the five Judges participating in the decision ex-

pressed 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,

607

law should be examined from the point of view of reasonable-

ness; that is to say, the Court should consider not only

factors such as the duration and the extent of the re-

strictions, 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 restric-

tions 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 into

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 judg-

ment in such cases can only be dictated by their sense of

responsibility and self-restraint and the sobering reflec-

tion 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 authoris-

ing 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 autho-

rised 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 curtail-

ment is fraught with such potential reactions in the reli-

gious political and economic fields, that the vesting of

authority in the executive government to impose restrictions

on such right, without allowing the grounds of such imposi-

tion, both in their factual and legal aspects, to be

608

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 Advisory 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 freedom guaranteed

to the citizen, may be viewed as reasonable only in very

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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(1) deprivation of personal liberty by such

means, but that was because the Constitution itself sanc-

tions 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(2), "the

court was the least appropriate tribunal 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 ease(3) where the subjective satis-

faction 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 "reasona-

ble" 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 ease, as the impugned Act provided that the

Advisory Board's report was binding on the Government. We

cannot agree. We consider that that ease

(1) [1950] S.C.R. 88. (2) [1917] A.C. 260, 269. (3)

[1950] S.C.R. 519,

609

is distinguishable in several essential particulars. For one

thing, externment of individuals, like preventive detention,

is largely precautionary and based on suspicion. In fact,

section 4 (1) of the East Punjab Public Safety Act, which

was the subject of consideration in Dr. Khare's case(1),

authorised both preventive detention and externment for the

same purpose and on the same ground namely, with a view to

preventing him from acting in any manner prejudicial to the

public safety or the maintenance of public order it is

necessary, etc." Besides, both involve an element of emer-

gency requiring prompt steps to be taken to prevent appre-

hended danger to public tranquillity, and authority has to

be vested in the Government and its officers to take appro-

priate action on their own responsibility. These features

are however, absent in the grounds on which the Government

is authorised,under section 15 (2) (b), to declare associa-

tions unlawful. These grounds, taken by themselves, are

factualand not anticipatory or based on suspicion. An asso-

ciation 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 interfer-

ence for its object" etc. The factual existence of these

grounds is amenable to objective determination 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-

General conceded that it would be incumbent on the Govern-

ment to establish, as a fact, that the association, which it

alleged to be unlawful, "encouraged" or "aided" persons to

commit acts of violence, etc. We are unable to discover

any reasonableness in the claim of the Government in seek-

ing, 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 enactment

which was to be in force only for a year, and any order made

there-under was to expire at the termination of the Act.

What may be regarded as a reasonable restriction

(1) [1950] S.C.R. 519.

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610

imposed under such a statute will not necessarily be consid-

ered 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 affixture

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 carries 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 1oat. Yet,

the consequences to the members which the notification

involves are most serious, for, their very membership there-

after 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 render

the imposition of

611

restrictions by such means unreasonable. In this respect

an externment order stands on a different footing, as provi-

sion 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 distinguisha-

ble and cannot rule the present case as claimed by the

learned AttorneyGeneral. Indeed, as we have observed earli-

er, a 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 cumula-

tive effect of the varying facts and circumstances of each

case.

Having given the case our best and most anxious consid-

eration, 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, unconsti-

tutional and void.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11

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 Travan-

core-Cochin: P.A. Mehta.

(1) [1950] S.C.R. 519,

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