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PETITIONER: SANTOKH SINGH

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT20/02/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1091            1973 SCR  (3) 533  1973 SCC  (1) 659

ACT: 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.

HEADNOTE: 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

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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 [1962] 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]

JUDGMENT: 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

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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)  [1970] 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

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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

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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)  [1962] 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

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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)  [1966] 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

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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)  [1959] 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. 541