Supreme Court Cases
1973 AIR 1091 1973 SCR (3) 533 1973 SCC (1) 659
Supreme Court Cases
1973 AIR 1091 1973 SCR (3) 533 1973 SCC (1) 659
CITATION: 1973 AIR 1091 1973 SCR (3) 533 1973 SCC (1) 659
Constitution of India, Article 19(1) (a)-Punjab Security of State Act (No. 12 of 1953)-Sec. 9 whether violates Article 19(1)(a)-Speech or statement which "tends to over throw the State"-whether restriction unreasonable-Constitution of India, Art. 136-Appeal by Special Leave on a pure question of law effecting constitutional validity of an Act-whether can be raised for first time in Supreme Court-Scope of appeal on special leave-whether appellant can claim adjudication on merits as of right.
The appellant was prosecuted under section 9 of the Maintenance of Punjab Security of State Act for addressing a public meeting in which it was alleged that he had incited the defence employees to commit offences prejudicial to security of the. State or to, the maintenance of public order. Sec. 9 of the Act prohibits speeches or statements etc. which have effect of undermining the security of the.
State, friendly relations with foreign States, public order decency or :morality or which amount to contempt of court, defamation or. incitement to an offence prejudicial to the security of the State or the maintenance of public order or which tends to over throw the State. On perusal of the documents filed u/s. 173 of the Cr.P.C., the Magistrate cam to the conclusion that the prima facie case was established.
The appellant unsuccessfully challenged the said interlocutory order before the Sessions Court and then in the High Court. On appeal by special leave, the appellant raised the question. of constitutional validity of Sec. 9 of the Act. The appellant contended : (i) that Sec. 9 of the Punjab Security of State Act was violative of the fundamental right guaranteed under Art. 19(1) (a) of the Constitution, and (ii) in the alternative, the operation of Sec. 9 should be limited only to such matters as involve incitement to violence or intention or tendency to create public disorder or cause disturbance to public peace. In dismissing the appeal.
HELD : (i) Except the words "tends to over throw the State" the rest of the provisions of Section 9 reproduce the provisions of Art. 19(2) of the Constitution. The prohibition relating to offending speech, wods or the other publications which tend to over throw the State clearly fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State". Restriction, therefore, is. Prima facie reasonable restriction. [537 C-E] Superintendent of Central fail, Fatehgarh v. Ram Manohar Lohia  2 S.C.R. 321, distinguished on facts.
(ii) Reasonable restrictions in respect of matters specified in Art. 19(2) are essential for integrated development on egalitarian. progressive lines of any peace loving civilised society. Art. 19(2) thus saves the constitutional validity of Sec. 9 of the Act. The analogy between s.124(1)IPC and Sec. 9 of the Act is wholly misconceived and in view of the comprehensive sweep of Art. 19(2). Sec. 9 of the Act cannot be restricted to those speeches and expressions which incite or tend to incite violence only. Sec. 9 cannot be interpreted in a restricted L 761 SupCI/73 534 manner Sec. 124(1)IPC was interpreted in Kedarnath Singh v.
State of Bihar [1966 Supp. 2 S.C.R. 7691] [539 A-C] (iii) The Supreme Court may allow the question of law effecting the constitutional validity of an Act for the first time to be 'raised in Supreme Court. In an appeal by special leave under Art. 136 of the Constitution, the scope, of the appeal is not enlarged after leave and the appellant cannot as of right claim adjudication on merits. The, Court would not pronounce its opinion on the merits of the charge framed against the appellant. [540 C-E]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 197 of 1972.
Appeal by special leave from the judgment and order date 24th day of February 1972, of the Delhi High Court in Cr.
Rev. No. 469 of 1970.
S. C. Agarwala and A. K. Gupta for the appellant.
D. P. Bhandari and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by DUA, J. This appeal by special leave is directed against the judgment and order of a learned single Judge of the High Court, of Delhi dated February 24, 1972 rejecting the appellant' revision petition under ss. 430 and 561-A of the Code of Criminal Procedure. In that revision he had prayed, that the charge framed. :against him by a Magistrate, First Class, New Delhi on July 3, 1969 under s. 9 of the Punjab Security of State Act (Punjab Act no. 12), 1953 (hereinafter called the Act) be quashed. The special leave petition originally came up for preliminary hearing before a bench of this, Court on August 18, 1972 when notice to show cause was issued. On September 19, 1972 the hearing was again adjourned for a week to enable the petitioner's counsel to file' a writ petition. It appears that no writ petition was filed but on September 26, 1972 this Court granted special leave on usual terms. The appeal was also directed to be heard on the existing paper book with liberty to the parties to file such additional documents as they wished to file, from the record. The appeal was directed to be listed for hearing in the second week 'of January, 1973. Sometime in January, 1973 the appellant presented criminal miscellaneous petition no. 32 of 1973 seeking permission to urge additional grounds. In that application the constitutional' Validity of s. 9 of the Act was questioned. The said section, according to the averment in that Petition, 'infringes the fundamental., right of speech. guaranteed under Art. 19(1) (a) of the Constitution.
It is alleged by the prosecution that the appeal ant had addressed a public meeting of the employees of the Defence Department on 535 October 9,,1968 and in the course of his speech he had incited the said employees to commit offences prejudicial to the security of the State, or to the maintenance of public order. The Magistrate had, on perusal of the documents filed under s. 1973, Cr. P.C. framed a charge against the appellant punishable under S. 9 of the Act. According to the judgment of the High Court the offending portion of the speech which had been delivered in Hindi reads as follows :
"There will be hunger strike at Chavan Sahib's kothi No. 1 Race Course Road. If- Chavan Sahib thinks that they will be in position to crush us with the, assistance of C.R.P. and B.S.F. then that is his misunderstanding.
Chavan Sahib when the Britishers had to leave this country then the same military and police will push you out. Because these children of military and. police personnels are also hungry they also require bread for eating.
Therefore, the day has to come when after their unity these workers will send you out. Comrades the Government suffered the moral death when it promulgated the ordinance.
Because we had no idea of starting any violance, when we demanded bread, clothes and house. This struggle of ours will continue.
If Government servants die then other labourers. will take this struggle ahead. One thing more I want to tell you that if there will be no celebration of Diwali in the house of our fifty thousand people, then there shall be darkness in the houses of these ministers.
I want to tell you Chavan Sahib that if your repression continued in the same way, one Udham Singh will be born amongst these labourers who will not live you live as Udham Singh killed Dyre after going to London.
Annexures I and II attached to the petition under Art. 136 of the Constitution stated in para 4 thereof to be the English translation of the statements of the two police officers on the basis of which. the charge sheet had been filed in court contained a couple of more' sentences which do appear to be of some importance. But we consider it unnecessary for our present purposes to refer to them. The High Court, considered the part of the speech reproduced above and after referring to the decisions of this Court in State of Bihar v. Shrimati Shailbala Devi(1), Rain Manohar Lohia v. State of Bihar ( 2 ) and Sudhir Kumar Saha v. The Commissioner of Police(3) dismissed the revision holding that prima facie the remarks made by the appellant in his speech amounted to an offence under s. 9 of the Act. It was, however, added that it was open to the petitioner either by cross-examination of the prosecution (1) A.I.R. 1952 S.C. 320. (2) A.I.R. 1966 S.C. 740.
(3)  1 S.C.C. 149.
536 witnesses or by adducing evidence in defence to show that in the circumstances under which these remarks were made they did not amount to an incitement to an offence prejudicial to the security of the State or the maintenance of public order. The High Court felt that at that stage it could not be said.that there was no prima facie case against the petitioner under S. 9 of the Act.
In this Court Shri S. C. Agarwal questioned the vires of S.
9 of the Act, contending that this section is violative of the fundamental right guaranteed by Art. 1 0 ( 1 ) (a) of the Constitution. No doubt, this point was not raised in the High Court and in this Court also it was specifically sought to be raised only in the subsequent applications presented in January, 1973 but as the speech in question was itself sought in para 5 of the petition for special leave to be protected by Art. 19(1) (a) and as it was a pure question of law raising the constitutionality of s. 9 of the Act we permitted the counsel to raise it.
Section 9 of the Act reads "9. Dissemination of rumours, etc.Whoever (a) makes any speech, or (b) by words, whether spoken or written, or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall, if such speech, statement, rumour or report undermines the security of the State, friendly relations with foreign States, public order, decency or morality, or amounts to contempt of Court, defamation or incitement to an offence prejudicial to the security of the State or the maintenance of public order, or tends to overthrow the State, be punishable with imprisonment which may extend to three years or with fine or with both." This section on its own plain reading taken within its fold all the objectionable matters which had been taken by sub- Art. (2) of Art. 19 out of the guaranteed freedom of speech and expression Protected by cl. (a) of Art. 19(1). In order to fully understand the freedom of speech and expression guaranteed by the Constitution it is necessary to reproduce Art. 19 (1) (a) and (2):- Right to Freedom 19(1) AR citizens shall have the right- (a) to freedom of speech and expression;
(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the 537 State from making any law, in so far as such law imposes reasonable restriction on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State friendly relations with foreign states, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence".
It may appropriately be pointed out here that sub-Art. (2) was amended in 1963 so as to include in the limitation contained therein reasonable restrictions in the interest of the sovereignty and integrity of India. This limitation was not in this sub-Article in 1953 but as it does not affect the question raised in this case we need say nothing more about it.
Reading s. 9 of the Act and Art. 19(2) of the Constitution it is obvious that the only matter specifically contained in s. 9 in addition to those stated in Art. 19(2) relate to the offending speech, words or other publications which "tends to overthrow the State". Now this matter would clearly also fall within the sweep of the expression "incitement to an offence prejudicial to the security of the State" contained in s. 9 and within-Art. 19(2) where it speaks of "reasonable restrictions .... in the interest of.... the security of the State". Anything tending to overthrow the State must necessarily be prejudicial to the security of the State and, therefore, a law can be made placing reasonable restrictions on the right of freedom of speech and expression in this respect in the interests of security of State. Prima facie, therefore, s. 9 clearly falls within the express language of Art. 19(2).
On behalf of the appellant great stress was laid on Superintendent of Central Jail, Fatehgarh v. Ram Manohar Lohia(1) where this Court struck down as unconstitutional s.
3 of the U.P. Special Powers Act (U.P. Act 14 of 1932).
That section reads "3. Whoever by word, either spoken or written or by signs, or by, visible representations or otherwise, instigates, expressly or by implication, any person or class of persons not to pay or to defer payment of any liability, and whoever does any act with intent or knowing it to be likely that any words, signs or visible representations containing such instigation shall thereby be communicated directly or indirectly to any person or class of persons, in any manner whatsoever, shall be punishable with imprisonment which may extend to six months, or with fine, extending to Rs. 250, or with both." On the face of its plain language this section is materially different from s. 9 of the Act. It therefore does not require. elaborate argu- (1)  2 S.C.R. 321.
538 ment for distinguishing this decision. Section 3 of the U.P. Act is clearly hit by. Art. 19 (1) (a) and can on no reasonable or rational argument be saved by Art., 19(2).
There being absolutely no similarity between that section and s. 9 of the Act with which we are concerned, the ratio of that decision cannot serve as a precedent for invalidating s. 9 of the Act. The appellant's learned counsel then drew our attention to Kedarnath Singh v. State of Bihar (1) in which ss. 12A and 505, I.P.C. were held to be in the interest of public order and within the ambit of constitutional limitations contemplated by Art. 19 ( 1 read with Art. 19 (2). On analogy of s. 124A as construed in than decision it was contended that in order to bring s. 9 of the Act within the constitutional limits of Art. 19 (2) it must similarly be construed narrowly so that the fundamental, freedom of speech and expression is not 'unduly restricted. The operation of s. 9 of the Act, it was sub- mitted, should be limited only to such matters as involve incitement to violence. or intention or tendency to create public disorder or cause disturbance of public peace. The fundamental right guaranteed by Art. 19 (1) (a) and the interest of public order protected by Art. 19 (2) according to Shri Agarwal's submission, must be, properly adjusted and a correct balance struck between two.
In our opinion, the principle governing the construction of Art. 19 ( 1 ) (A) read with Art. 19 (2) is well crystallised by now in various decisions of this Court and it is unnecessary to cover the whole round over again by going through them extensively.
We of course agree with Shri Agarwal that the fundamental right guaranteed by Art. 19(1) (a) and the interest of public protected by Art. 79(2) must be. properly adjusted and reasonable balance struck between the two. There can be no dispute that there is no such thing as absolute of unrestricted freedom of speech and expression wholly free from restraint for that would amount to uncontrolled licence which would tend to lead to disorder and anarchy. The right to freedom of speech and expression is undoubtedly a valuable and cherished right possessed by a citizen in our Republic. Our governmental set up being elected, limited and responsible we need requisite freedom of animadversion, for our social interest ordinarily demands free propagation of views. Freedom to think as one likes, and to speak as one thinks are, as a rule, indispensable to the discovery and spread of truth add without free speech discussion may well be futile. But at the same time we can only ignore at our peril the vital importance of our social interest in, inter alia, public, order and security of our State. It is for this reason that our Constitution has rightly attempted to strike a proper balance between the various competing social in- (1)  Supp. 2 S.C.R. 769.
539 terests. It has permitted. imposition of reasonable restrictions on the citizen's right of freedom of speech and expression in the interest of, inter alia, public order, security of State, decency or morality and impartial justice, to serve the larger collective interest of the nation as a whole. Reasonable restriction in respect of matters specified in Art. 19(2) are essential for integrated development on egalitarian, progressive lines of any peace- loving' civilised society. Article 19(2) thus saves the constitutional validity of 9 of the Act. The analogy between s. 124A, I.P.C. and s. 9 of the Act is wholly misconceived and in view of the comprehensive of Art. 19(2) 'we are unable to restrict s. 9 of the Act only to those speeches and Expressions which. incite or tend to incite Violence..
Learned counsel also tried to refer us to some American decisions for developing the argument that the guaranteed freedom of speech and expression should be broadly construed but we did not consider it necessary to go into the American decisions, notwithstanding the fact that in Express Newspapers (P.) Ltd. v. Union of India(1) it was observed that American decisions were relevant for the purpose of understanding the scope of Art. 19 (1) (a). In our opinion, it is, hardly fruitful to refer to, the American decisions particularly when this Court has more than once clearly enunciated scope and effect of Art. 19 (1) (a) and 19 (2).
The test of reasonableness of the restriction has to be considered in each case in the light of the nature of the right infringed, the purpose of the restriction, the extent and the nature of the mischief required to be suppressed 'and the prevailing social and other conditions at the time.
There can be no abstract standard or general pattern of reasonableness. Our Constitution provides reasonably precise, 'general guidance in this matter. It would thus be misleading to construe it in the light of American decisions given in different context. (Section 9 of the Act is, in, our view, plainly within the legislative competence of the Punjab Legislature and it would be for the court in which the appellant is being tried to decide as to how far the appellant's speech is covered by this section.
Shri Agarwal made a strenuous effort to persuade us to cons- true the offending portion of the speech as reproduced in the judgment of the High Court and express our opinion whether- or not the charge against him has been lawfully framed. The charge reads as under :
"That you, on or about the 9th day of October, 1968 at 4.30 to 5.55 p.m. near the Railway Pathak- in the area of Delhi Cantt. made a speech at a public meeting organised by Delhi Defence employees in which you (1)  S.C.R. 12.
540 demanded or caused incitement to an offence prejudicial to the security of the State or the maintenance of public order and therein committed an offence punishable I under section 9 of the P.S. Act and within my cognizance." The appellant, it may be pointed out, had approached the sessions Court on revision to have this charge quashed.
That court apparently did not agree with the appellant. He then approached the High Court on revision where also he failed. The impugned judgment of the High Court does not show any serious legal infirmity resulting in failure, of justice which should induce this Court to interfere under Art. 136 of the Constitution. The submission that.at this Court has already granted special leave we: must decide the question of the legality of the charge on the merits has not appealed to us. Even at the final hearing of an appeal by special leave this Court has to apply the same test which is attracted at the preliminary stage, when the leave to appeal is asked for. After leave the scope of the appeal is not enlarged and even at that stage the appellant cannot as of right claim adjudication on the merits 'if this Court feels that there is no grave injustice done to the appellant as a result of any serious legal, infirmity. We are unable find any such infirmity in the impugned judgment. The additional factor against our interference in this case in the interlocutory character of the order sought to be quashed.
We have, however, no doubt that the learned Magistrate trying the appellant's case will deal with all the points raised before him oil the merits with,out being, influenced by the tentative view expressed by the High Court which the appellant himself invited. We also hope that this case which relates to a speech said to have been delivered in October, 1968 and in, which the prosecution was initiated as far back as January, 1969 when the charge was put into court, would be disposed of with due dispatch and without avoidable delay. This appeal fails and is dismissed.
S.B.W. Appeal dismissed.