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PETITIONER: VIRENDRA

       Vs.

RESPONDENT: THE STATE OF PUNJAB AND ANOTHER(and connected petition)

DATE OF JUDGMENT: 06/09/1957

BENCH: DAS, SUDHI RANJAN (CJ) BENCH: DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P. KAPUR, J.L. SARKAR, A.K.

CITATION:  1957 AIR  896            1958 SCR  308

ACT: Press  Control-Notification  issued by State  Government  on daily   newspaper-Prohibition  against  Publication   of   a Particular matter--Prohibition against entry into the State- Restrictions,  if  reasonable--If violative  of  fundamental right of freedom of speech and expression and right to carry on trade or business-The Punjab Special Powers (Press)  Act, 1956  (No. 38 of 1956), SS. 2, 3-The Constitution of  India, Arts. 19(1)(a), 19(1)(g), 19(2), 19(6).

HEADNOTE: These  two petitions challenged the constitutional  validity of  the Punjab Special Powers (Press) Act, 1956 (No.  38  of 1956)  passed  by the State Legislature in the wake  of  the serious communal tension that had arisen between the  Hindus and  the Akali Sikhs over the question of the  partition  of the   State  on  a  linguistic  and  communal  basis.    The petitioners  were  the  editors,  printers  and  publishers, respectively,  of the two daily newspapers, Pratap  and  Vir Arjun,  printed and published simultaneously from  jullundur and  New  Delhi, whose admitted policy was  to  support  the "Save Hindi agitation".  Two notifications under S.  2(1)(a) of the impugned Act were issued against the editor,  printer and publisher of the two papers published from Jullundur  by the  Home  Secretary  prohibiting  him  from  printing   and publishing any matter relating to the ’Save Hindi agitation’ in  the  two papers for a period of two months.   Two  other notifications  in identical terms were issued under s.  3(1) of  the  impugned  Act against  the  other  petitioner,  the editor, printer and publisher of the two papers in New Delhi prohibiting him from bringing into the Punjab the newspapers printed  and published in.  New Delhi from the date  of  the publication  of  the notifications.  Unlike S. 2(1)  of  the impugned  Act which provided a time-limit for the  operation of an order made thereunder as also for a representation  to be  made  by the aggrieved person, s. 3 of the Act  made  no such   provision.   It  was  contended  on  behalf  of   the petitioners  that  both the sections were  ultra  vires  the State Legislature inasmuch as they infringed Arts.  19(1)(a)

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and 19(1)(g) of the Constitution and were not saved by Arts. 19(2) and 19(6) of the Constitution.  It was urged that  the sections  imposed  not  merely  restrictions  but  a   total prohibition  against  the exercise of the  said  fundamental rights  by  prohibiting  the  publication  of  all   matters relating to the ’Save Hindi agitation’ under S. 2(1)(a)  and by  a  complete prohibition of the entry of the  two  papers into the whole of the Punjab under s. 3(1) of the Act,  that even supposing                                        309 that  the  sections merely imposed restrictions  and  not  a total  prohibition,  the restrictions were  not  reasonable, that   the   sections  gave  unfettered   and   uncontrolled discretion  to the State Government and its  delegate,  that the  Act did not provide for any safeguard against an  abuse of  the power, that the language of the sections being  wide enough  to  cover restrictions both within and  cutside  the limits  of constitutionally permissible  legislative  action they  were  ultra  vires  the  Constitution  and  that   the notification  under  S.  2(1)(a) of the Act  as  made  would prevent  even the publication of anything against the  ’Save Hindi  agitation’  and should have been restricted  to  such matters  alone  as were likely to prejudicially  affect  the public order. Held,  that  the restrictions imposed by S. 2(1)(a)  of  the impugned Act were reasonable restrictions within the meaning of Art. 19(2) of the Constitution and the petition  directed against  the notifications issued thereunder must fail,  but since s. 3 Of the Act did not provide for any time limit for the  operation  of  an  order  made  thereunder  nor  for  a representation   by  the  aggrieved  party  to   the   State Government,   the  restrictions  imposed  by  it  were   not reasonable restrictions under Art. 19(6) of the Constitution and  the  petition directed against the  notifications  made thereunder must succeed. Held  further, that there can be no doubt that the right  of freedom  of speech and expression carries with it the  right to  propagate one’s views and the several rights of  freedom guaranteed by Art. 19(1) of the Constitution are exercisable throughout India but whether or not any restrictions put  on those  rights amount to a total prohibition of the  exercise of  such rights must be judged by reference to their  ambit. So  judged,  the restrictions imposed in the  instant  cases with  regard to the publications relating to only one  topic and  the  circulation  of the papers only  in  a  particular territory  could  not amount to a total prohibition  of  the exercise of the fundamental rights. The  expression  "in the interest of" in  Arts.   19(2)  and 19(6)  of the Constitution makes the protection they  afford very  wide and although free propagation and interchange  of views  are ordinarily in social interest, circumstances  may arise  when social interest in public order is  greater  and the imposition of reasonable restrictions on the freedom  of speech  and  expression and on the freedom  of  carrying  on trade  or business becomes imperative.  Regard being had  to the surrounding circumstances in which the impugned Act  was passed,  its object, the extent and urgency of the  evil  it sought  to  remedy, and the enormous power  wielded  by  the Press, with modern facilities of quick circulation, and  the consequence  that  any  abuse  of  it  might  lead  to,  the restrictions imposed by the impugned Act must be held to  be reasonable restrictions under the Articles. The  State  of  Madras  v. V. G.  Row,  (1952)  S.C.R.  597, followed. 310

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It  was  only  in  the fitness  of  things  that  the  State Legislature  should  have left the  wide  preventive  powers under   the  sections  to  the  discretion  of   the   State Government,  charged with the maintenance of law and  order, or  to  its delegate, to be exercised  on  their  subjective satisfaction.    To  make  the  exercise  of  these   powers justiciable  and  subject to judicial scrutiny would  be  to defeat the purpose of the enactment. Dr.   N. B. Khare v. The State of Delhi, (1950) S.C.R.  519, referred to. But   such  discretion  was  by  no  means  unfettered   and uncontrolled.  The two sections laid down the principle that the  State  Government or its delegate could  exercise  such powers  only if they were satisfied that such  exercise  was necessary for the purpose mentioned in the sections and  not otherwise.   Where  there  was any  abuse  of  such  powers, therefore,  what could be struck down was the  abuse  itself but not the statute. Dwaraka  Prasad Laxmi Nayain v. The State of Uttar  Pradesh, (1954) S.C.R. 803, held inapplicable. Harishankar  Bagla v. The State of Madhya Pradesh, (1955)  1 S.C.R. 380, relied on. In  view  of  the amended provisions of Art.  19(2)  of  the Constitution  and the language of the two sections  limiting the  exercise  of the powers to  the  purposes  specifically mentioned  therein, the principles enunciated by this  Court in Ramesh Thappay’s case and applied to Chintaman Rao’s case could have no application to the instant cases. Ramesh Thappay v. The State of Madras, (1950) S.C.R. 594 and Chintaman Rao v. The State of Madhya Pradesh, (1950) S.C. R. 759, held inapplicable. The  two  provisos  to s. 2(1)(a) and cl.  (b)  of  S.  2(1) clearly  show  that  the restrictions imposed by  s.  2  are reasonable  restrictions  on  the  exercise  of  the  rights guaranteed   by  Arts.  19(1)(a)  and  19(1)(g)   and   are, therefore,  protected  by  Arts.  9(2)  and  19(6)  of   the Constitution. There could be no basis for the grievance that the notifica- tion  under  s. 2(1)(a) prevented the  publication  even  of matters against the ’Save Hindi agitation’.  If there was  a change in the policy of the papers, the time-limit  provided for the operation of the notifications and the right to make a representation provided ample remedies for the petitioner. To   introduce   into  the   notifications   the   suggested qualification  would be to make the exercise of  the  powers conferred  by  the section dependent on  an  objective  test subject to judicial scrutiny and defeat the very purpose  of the section.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Petitions Nos, 95 and  96  of 1957. 311 Petitions under Article 32 of the Constitution of India  for the enforcement of Fundamental Rights. N.   C. Chatterjee, Charan Das Puri and Naunit Lal, for  the petitioners (in both the petitions). C.   K.  Daphtary, Solicitor-General of India,  Lachman  Das Kaushal, Deputy Advocate-General for the State of Punjab and T. M. Sen, for the respondents. 1957.  September 6. The following Judgment of the Court  was delivered by DAS  C.J.-In  these  two  petitions under  Art.  32  of  the

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Constitution  of India the petitioners call in question  the validity  of  the Punjab Special Powers  (Press)  Act,  1956 (being Act No. 38 of 1956), hereinafter referred to as " the impugned  Act ", and pray for an appropriate writ  or  order directing  the  respondents to  withdraw  the  Notifications issued  by  them  on the two  petitioners  as  the  editors, printers  and publishers of two newspapers, Pratap  and  Vir Arjun. The Daily Pratap was started about 38 years back in  Lahore, the  capital of the united Punjab.  It is a daily  newspaper printed  in  the  Urdu  language  and  ,script.   Since  the partition of the country the Daily Pratap is being published simultaneously  from Jullundur and from New Delhi Vir  Arjun is  a  Hindi daily newspaper also  published  simultaneously from   Jullundur   and  from  New  Delhi.    Virendra,   the petitioner,  in  Petition  No. 95 of  1957  is  the  editor, printer  and  publisher  of the two  papers  published  from Jullundur  and  K.  Narendra  is  the  editor,  printer  and publisher of the two papers published from New Delhi. The  petitioners  allege that after the appointment  of  the States  Reorganisation Commission on December 29, 1953,  the Akali  party  in  the  Punjab started  a  campaign  for  the partition of the State of Punjab on communal and  linguistic basis.   According  to the petitioners this  agitation  soon degenerated  into a campaign of hatred which threatened  the peace of the State.  The petitioners maintain that the Hindu inhabitants of the State belonging to all shades of  opinion and also a section of the Sikh community and 312 the  Congress Party were strongly opposed to that  proposal. It  is  in the circumstances reasonable to  infer  that  the Hindus  would  also indulge in a counter propaganda  in  the Press and from the platform against the agitation started by the  Akali party.  It is admitted that the policy  of  these two  papers,  the Daily Pratap and Vir Arjun,  has  been  to oppose  the  Akali  demand for partition  of  the  State  of Punjab.   Obviously a good deal of tension was generated  in the  State  by reason of the two bitterly  opposing  parties trying  to propagate their respective ideologies.   About  a year back the Congress Party, which is the ruling party,  is said  to  have surrendered to the communal pressure  of  the Akalies and accepted what has since come to be known as  the regional formula.  It was amidst the din and bustle of  this ideological  war  and  to prevent and  combat  any  possible activity prejudicial to the maintenance of communal  harmony that  the  Legislature  of  the State  of  Punjab  found  it necessary to pass the impugned Act which received the assent of the President on October 19, 1956, and came into force on the 25th of the same month. The provisions of the impugned - Act, in so far as they  are material, may now be referred to.  Section 2 (1) (a) runs as follows: "  2(1) The State Government or any authority so  authorised in  this behalf if satisfied that such action  is  necessary for  the  purpose of preventing or  combating  any  activity prejudicial to the maintenance of communal harmony affecting or  likely to affect public order, may, by order in  writing addressed to a printer publisher or editor,- (a)  prohibit the printing or publication in any document or any  class  of  documents  of  any  matter  relating  to   a particular  subject  or class of subjects  for  a  specified period or in a particular issue or issues of a newspaper  or periodical; Provided  that no such order shall remain in force for  more than two months from the making thereof;

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Provided further that the person against whom the order  has been made may within ten days of the 313 passing  of  this order make a representation to  the  State Government  which  may  on  consideration  thereof   modify, confirm or rescind the order;" Section  2(1)(b)  authorises  the State  Government  or  any authority  so authorised in this behalf to require that  any matter  covering not more than two columns be  published  in any particular issue or issues of a newspaper or  periodical on  payment  of  adequate remuneration and  to  specify  the period (not exceeding one week) during which and the  manner in  which such publication shall take place.  Clause (c)  of s.  2(1)  authorises the State Government or  the  delegated authority to impose pre-censorship.  Sub-section (2) of s. 2 enables  the State Government or the authority  issuing  the order  in  the event of any disobedience of  an  order  made under  s.  2  to  order the seizure of  all  copies  of  any publication and of the printing press or other instrument or apparatus  used  in the publication.  Section 3(1)  runs  as follows: " The State Government or any authority authorised by it  in this behalf, if satisfied that such action is necessary  for the   purpose  of  preventing  or  combating  any   activity prejudical to the maintenance of communal harmony  affecting or  likely  to affect public order,  may,  by  notification, prohibit   the  bringing  into  Punjab  of  any   newspaper, periodical, leaflet or other publication." Sub-section (2) of s. 3 gives power to the State  Government or  the  authority issuing the order, in the  event  of  any disobedience  of  an  order made under s. 3,  to  order  the seizure of all copies of any newspaper, periodical,  leaflet or   other  publication  concerned.   Section   4   provides punishment for the contravention of any of the provisions of the  Act  by imprisonment of either  description  which  may extend to one year or with fine up to one thousand rupees or with both. It  appears that on or about May 30, 1957, a movement  known as the "save Hindi agitation " was started by a Samiti which goes  by the name of Hindi Raksha Samiti.  The  Arya  Samaj, which claims to be a cultural and religious society,  joined this campaign 314 for  changing  what they conceive to  be  the  objectionable features  of the regional formula and the Sachar formula  on language.   According  to the petitioners the  Hindi  Raksha Samiti,  the sponsor of the " save Hindi agitation "  claims that  it has the support of practically all sections of  the Hindus  of the State.  The petitioners who are the  editors, printers  and  publishers of the  two  newspapers  published simultaneously  from  Jullunder and New  Delhi  respectively consider  that the objectionable clauses of  those  formulae are  not only unjust and unfair to the cause of  propagating that  national  language  in the country,  but  are  also  a contrivance  to  secure  the  political  domination  of  the minority  community  over  the  majority.   Admittedly   the petitioners   have  been  publishing  criticisms  and   news concerning the agitation which, according to them, are quite fair  and legitimate, but they allege that  newspapers  like Prabhat and Ajit, which support the Akali party in the State have  been publishing articles and news couched in a  strong and  violent language against the " save Hindi  agitation  " and the Hindu community.  The agitation apparently  followed the  usual course and pattern of all political agitation  of this  kind  with its attendant demonstrations,  slogans  and

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satyagraha by the volunteers and lathi charge by the police. Eventually on July 10, 1957, the agitation culminated in the " save Hindi agitation " volunteers’ forcible entry into the Secretariat of the Punjab Government at Chandigarh.  It  was in   these   circumstances  that  the   four   Notifications complained of were issued. On  July  13, 1957, a Notification under s. 2(1)(a)  of  the impugned Act was issued against the petitioner Virendra,  as the  editor,  printer  and publisher  of  the  Daily  Pratap published from Jullundar.  It was in the following terms: "   Whereas   1,  Ranbir  Singh,  Home   Secretary,   Punjab Government, authorised by the said Government under  section 2(1)  of  the Punjab Special Powers (Press)  Act,  1956,  on examination  of the publications enumerated in the  annexure relating  to  the " save Hindi agitation  "  have  satisfied myself that action is 315 necessary  for  combating  the  calculated  and   persistent propaganda carried on in the newspaper the Pratap’ published at  Jullundar  to disturb communal harmony in the  State  of Punjab; And  whereas  the  said propaganda by making  an  appeal  to communal sentiments has created a situation which is  likely to affect public order and tranquillity in the State ; And  therefore  in pursuance of the powers  conferred  under sub-clause (a) of clause (1) of section 2 of the said Act, 1 prohibit  Shri  Virendra,  the printer,  publisher  and  the editor of ’Pratap’ from printing and publishing any article, report,  news  item,  letter or any other  material  of  any character  whatso ever relating to or connected  with  "save Hindi agitation" for a period of two months from this date. Sd./ Rome Secretary to Government               Punjab. No: 8472-C(H) 57/14679 " The  annexure referred to in the Notifications sets out  the headings of fifteen several articles published in this paper between May 30, 1957, to July 8, 1957.  Another Notification in  identical  terms  with an  annexure  setting  forth  the heading of sixteen articles published during the same period in Vir Arjun was issued on the same day against Virendra  as the  editor,  printer and publisher of Vir  Arjun  published from Jullundar. On July 14, 1957, two Notifications in identical terms  were issued under s. 3 of the impugned Act against K. Narendra as the  editor, printer and publisher of Daily Pratap  and  Vir Arjun published from New Delhi.  It will suffice to set  out the  Notification  in respect of Daily Pratap which  ran  as follows:                  Punjab Government Gazette                        Extraordinary                    Published by Authority            Chandigarh, Sunday, July 14, 1957.                                      Home Department                                      Notification                                      The 14th July, 1957, 41 316 No.   8453-C(H)-57/14580:-Whereas  1,  Ranbir  Singh,   Home Secretary  to  Government, Punjab, authorised  by  the  said Government  under  section 3 of the  Punjab  Special  Powers (Press)  Act,  1956,  have  satisfied  myself  that  it   is necessary to combat and prevent the propaganda relating to " save  Hindi  agitation " carried on in the Pratap  with  the object of disturbing communal harmony in the State of Punjab and thereby affecting public order;

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Now,  therefore,  in  exercise of the  powers  conferred  by section  3(1)  of  the said Act, I do  hereby  prohibit  the bringing into Punjab of the newspaper printed and  published at   Delhi,   from   the  date  of   publication   of   this notification." The  petitioners  contend  that  both ss. 2  and  3  of  the impugned Act are ultra vires the State Legislature,  because they  infringe  the fundamental rights  of  the  petitioners guaranteed   by   Arts.  19(1)(a)  and   19(1)(g)   of   the Constitution and are not saved by the protecting  provisions embodied in Art. 19(2) or Art. 19(6).  In the first place it is   contended  that  these  sections  impose   not   merely restrictions  on but total prohibition against the  exercise of  the  said  fundamental rights, for in the  case  of  the Notifications  under  s.  2 there  is  a  total  prohibition against  the publication of all matters’ relating to  or  in connection with the " save Hindi agitation " and in the case of  the  Notifications made under s. 3 there is  a  complete prohibition  against  the entry and the circulation  of  the papers  published  from New Delhi in the  whole  of  Punjab. There is and can be no dispute that the right to freedom  of speech and expression carries with it the right to propagate and circulate one’s views and opinions subject to reasonable restrictions.   The  point to be kept in view  is  that  the several rights of freedom guaranteed to the citizens by Art. 19(1) are exercisable by them throughout and in all parts of the territory of India.  The Notifications under s.  2(1)(a) prohibiting  the  printing and publishing  of  any  article, report,  news  item,  letter or any other  material  of  any character  whatsoever relating to or connected with  "  save Hindi  agitation  " or those under s. 3(1)  imposing  a  ban against the entry 317 and  the circulation of the said papers published  from  New Delhi in the State of Punjab do not obviously take away  the entire  right,  for the petitioners are yet  at  liberty  to print  and  publish  all  other  matters  and  are  free  to circulate the papers in all other parts of the territory  of India.   The  restrictions,  so  far  as  they  extend,  are certainly  complete  but  whether they  amount  to  a  total prohibition  of the exercise of the fundamental rights  must be  judged by reference to the ambit of the rights  and,  so judged,  there  can be no question that  the  entire  rights under  Arts. 19(1)(a) and 19(1)(g) have not been  completely taken  away,  but restrictions have been  imposed  upon  the exercise  of those rights with reference to the  publication of  only  articles etc. relating to a particular  topic  and with  reference to the circulation of the papers only  in  a particular territory and, therefore, it is not right to  say that  these sections have imposed a total  prohibition  upon the exercise of those fundamental rights. Learned  counsel  then urges that  assuming  these  sections impose  only  restrictions they are, nevertheless,  void  as being   repugnant   to   the   Constitution,   because   the restrictions  are not reasonable.  As regards the  right  to freedom of speech and expression guaranteed by Art. 19(1)(a) it is qualified by Art. 19(2) which protects a law in so far as it imposes reasonable restriction on the exercise of  the right   conferred  by  Art.  19(1)(a)  "in   the   interests of.....................................               public order..................  Likewise the right to carry on  any occupation, trade or business guaranteed by Art. 19(1)(g) is out down by Art. 19(6) which protects a law imposing "in the interests of the general public" reasonable restrictions  on the  exercise of the right conferred by Art.  19(1)(g).   As

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has  been explained by this Court in Ramji Lal Modi  v.  The State  of  U. P. (1) the words " in the interests of  "  are words of great amplitude and are much wider than the words " for  the maintenance of ". The expression " in the  interest of " makes the ambit of the protection very wide, for a  law may  not have been designed to directly maintain the  public order or to directly protect the general public against  any particular evil and yet it (1)  Petition No. 252 of 1955. decided on April 5, 1957. 318 may  have  been enacted "in the interests of  "  the  public order  or  the  general public as the case may  be.   It  is against  this  background,  therefore, that we  are  to  see whether the restrictions imposed by ss. 2 and 3 can be  said to  be reasonable restrictions within the meaning  of  Arts. 19(2) and 19(6). The test of reasonableness has been laid down by this  Court in  The  State of Madras v. V. G. Row (1) in  the  following words: "  It is-important in this context to bear in mind that  the test  of  reasonableness,  wherever  prescribed,  should  be applied to each individual statute impugned, and no abstract standard or general pattern, of reason ableness can be  laid down  as applicable to all cases.  The nature of  the  right alleged  to have been infringed, the underlying  purpose  of the restrictions 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. This  dictum has been adopted and applied by this  Court  in several subsequent cases.  The surrounding circumstances  in which  the impugned law came to be enacted,  the  underlying purpose  of the enactment and the extent and the urgency  of the  evil sought to be remedied have already  been  adverted to.   It  cannot be overlooked that the Press  is  a  mighty institution  wielding enormous powers which are expected  to be  exercised for the protection and the good of the  people but which may conceivably be abused and exercised for  anti- social purposes by exciting the passions and prejudices of a section  of the people against another section  and  thereby disturbing  the public order and tranquillity or in  support of  a  policy which may be of a subversive  character.   The powerful  influence of the newspapers, for good or evil,  on the minds of the readers, the wide sweep of their reach, the modern   facilities   for   their   swift   circulation   to territories,  distant  and  near, must all  enter  into  the judicial verdict and the reasonableness of the  restrictions imposed upon (1)  [1952] S.C.R. 597,607. 319 the  Press has to be tested against this background.  It  is certainly  a  serious  encroachment  on  the  valuable   and cherished  right  to freedom of speech and expression  if  a newspaper is prevented from publishing its own views or  the views  of its correspondent&-relating to or concerning  what may  be the burning topic of the day.  Our  social  interest ordinarily  demands the free propagation and interchange  of views  but circumstances may arise when the social  interest in  public order may require a reasonable  subordination  of the  social  interest in free speech and expression  to  the needs   of  our  social  interest  in  public  order.    Our Constitution recognises this necessity and has attempted  to strike  a  balance  between the two  social  interests.   It permits  the  imposition of reasonable restrictions  on  the freedom  of speech and expression in the interest of  public

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order and on the freedom of carrying on trade or business in the interest of the general public.  Therefore, the  crucial question  must always be : Are the restrictions  imposed  on the exercise of the rights under Arts. 19 (1) (a) and 19 (1) (g) reasonable in view of all the surrounding  circumstances ?  In other words are the restrictions reasonably  necessary in  the interest of public order under Art. 19(2) or in  the interest of the general public under Art. 19(6) ? It is conceded that a serious tension had arisen between the Hindus and the Akalis over the question of the partition  of the State on linguistic and communal basis.  The people were divided   into  two  warring  groups,  one  supporting   the agitation and the other opposing it.  The agitation and  the counter  agitation  were being carried on in the  Press  and from the platforms.  Quite conceivably this agitation  might at any time assume a nasty communal turn and flare up into a communal  frenzy  and factious fight disturbing  the  public order of the State which is on the border of a foreign State and  where  consequently the public order  and  tranquillity were and are essential in the interest of the safety of  the State.   It was for preserving the safety of the  State  and for  maintaining  the  public  order  that  the  Legislature enacted  this  impugned  Statute.  Legislature  had  to  ask itself the question, who will be 320 the appropriate authority to determine at any given point of time as to whether the prevailing cicumstances require  some restriction  to be placed on the right to freedom of  speech and  expression  and the right to carry on  any  occupation, trade  or  business  and to what  extent?   The  answer  was obvious,  namely, that as the State Government  was  charged with  the preservation of law and order in the State, as  it alone  was in possession of all material facts it  would  be the  beat  authority to investigate  the  circumstances  and assess the urgency of the situation that might arise and  to make up its mind whether any and, if so., what  anticipatory action must be taken for the prevention of the threatened or anticipated breach of the peace The court is wholly unsuited to gauge the seriousness of the situation, for it cannot  be in  possession of materials which are available only to  the executive  Government.  Therefore, the determination of  the time  when  and the extent to which restrictions  should  be imposed  on  the  Press must of necessity  be  left  to  the judgment and discretion of the State Government and that  is exactly what the Legislature did by passing the statute’  It gave  wide powers to the State Government, or the  authority to whom it might delegate the same, to be exercised only  if it  were  satisfied as to the things mentioned  in  the  two sections.   The  conferment  of  such  wide  powers  to   be exercised  on the subjective satisfaction of the  Government or its delegate as to the necessity for its exercise for the purpose of preventing or combating any activity  prejudicial to  the maintenance of communal harmony affecting or  likely to  affect public order cannot, in view of  the  surrounding circumstances  and  tension brought about or  aided  by  the agitation  in  the Press, be regarded as  anything  but  the imposition of permissible reasonable restrictions on the two fundamental rights.  Quick decision and swift and  effective action  must  be  of the essence of  those  powers  and  the exercise  of it must, therefore, be left to  the  subjective satisfaction  of  the Government charged with  the  duty  of maintaining  law and order.  To make the exercise  of  these powers justiciable and subject to the judicial scrutiny will defeat the very. 321

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purpose  of the enactment.  Even in his dissenting  judgment in Dr. N. B. Khare v. The State of Delhi (1) Mukherjea,  J., conceded   that  in  cases  of  this   description   certain authorities  could  be invested with power to  make  initial orders on their own satisfaction and not on materials  which satisfy certain objective tests. It   is   said  that  the  sections  give   unfettered   and uncontrolled  discretion to the State Government or  to  the officer  authorised  by it in the exercise  of  the  drastic powers  given  by  the sections.  We  are  referred  to  the observations of Mukherjea, J., in Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh (2).  That case does not  seem to us to have any application to the facts of this case.’ In the  first  place,  the discretion is  given  in  the  first instance  to the State Government itself and not to  a  very subordinate  officer like the licensing officer as was  done in Dwaraka Prasad’s case (supra).  It is true that the State Government  may delegate the power to any officer or  person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse  of this power of delegation.  That apart, it will  be remembered that the Uttar Pradesh Coal Control Order,  1953, with   reference  to  which  the  observations  were   made, prescribed no principles and gave no guidance in the  matter of  the  exercise of the power.  There was nothing  in  that order   to   indicate  the  purpose  for   which   and   the circumstances  under  which the  licensing  authority  could grant  or  refuse  to grant, renew or refuse  to  renew,  or suspend,  revoke,  cancel or modify any license  under  that order  and, therefore, the power could be exercised  by  any person  to whom the State Coal Controller might have  chosen to  delegate  the  same.  No rules had been  framed  and  no directions  had  been  given  on  the  relevant  matters  to regulate  or to guide the exercise of the discretion of  the licensing  officer.  That cannot, in our judgment,  be  said about s. 2 or s. 3 of the impugned Act, for the exercise  of the power under either of these two sections is  conditioned by  the State Government or the authority authorised by  the said Government being satisfied that such (1) [1950] S.C.R. 510. (2) [1954] S.C.R. 803,813. 322 action  was  necessary  for the  purpose  of  preventing  or combating  any  activity prejudicial to the  maintenance  of communal  harmony affecting or likely to affect  the  public order.   As explained by this Court in Harishankar Bagla  v. The State of Madhya Pradesh(1), the dictum of Mukherjea, J., can  have  no  application  to a  law  which  sets  out  its underlying policy so that the order-to be made under the law is to be governed by that policy and the discretion given to the  authority  is  to  be exercised in such  a  way  as  to effectuate  that  policy,  and  the  conferment  of  such  a discretion  so regulated cannot be called invalid.  The  two sections  before  us lay down the principle that  the  State Government or the delegated authority can exercise the power only  if it is satisfied that its exercise is necessary  for the  purposes  mentioned  in the sections.   It  cannot,  be exercised  for  any  other purposes.  In this  view  of  the matter  neither of these sections can be questioned  on  the ground that they give unfettered and uncontrolled discretion to  the  State Government or one executive  officer  in  the exercise of discretionary powers given by the section. It  is next said that an executive officer may  untruthfully say,  as  a matter of form, that he has been  satisfied  and there  is nothing in the section which may prevent him  from

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abusing  the power so conferred by these sections.  But,  as pointed  out  in Khare’s case (supra), the,  exercise  of  a discretionary   preventive   power  to   be   exercised   in anticipation  for preventing a breach of public  order  must necessarily be left to the State Government or its  officers to whom the State Government may delegate the authority.  No assumption ought to be made that the State Government or the authority will abuse its power.  To make the exercise of the power justiciable will defeat the very purpose for which the power   is  given.   Further,  even  if  the   officer   may conceivably abuse the power, what will be struck down is not the statute but the abuse of power. Reference has been made to the principles enunciated by this Court in Ramesh Thappar v. The, State Of (1)  [1955] 1 S.C.R. 380, 386, 387. 323 Madras  (1),  and applied in Chintaman Rao v. The  State  of Madhya Pradesh(2), namely, that if the language employed  in the  impugned law is wide enough to cover  restriction  both within   and   outside  the   limits   of   constitutionally permissible  legislative  action  affecting  the  guaranteed fundamental  rights  and so long as the possibility  of  the statute  being  applied for purposes not sanctioned  by  the Constitution  cannot  be  ruled out, the  sections  must  be struck down as ultra vires the Constitution. We do not think those principles have any applications the instant case.  It will  be remembered that Art.19(2), as it was  then  worded, gave protection to a law relating to any matter which under- mined  the  security of or tended to  overthrow  the  State. Section 9(1-A) of the Madras Maintenance of Public Order was made  "for  the purpose of securing public  safety  and  the maintenance  of  public  order".  It was  pointed  out  that whatever  end the impugned Act might have been  intended  to subserve  and  whatever aim its framers might  have  had  in view, its application and scope could not, in the absence of limiting  words in the statute itself, be restricted to  the aggravated  form  of  activities which  were  calculated  to endanger  the  security  of the State.  Nor  was  there  any guarantee that those officers who exercised the power  under the Act would, in using them, discriminate between those who acted  prejudicially to the security of the State and  those who  did not.  This consideration cannot apply to  the  case now under consideration.  Article 19(2) has been amended  so as  to  extend its protection to a law  imposing  reasonable restrictions  in  the  interests of  public  order  and  the language used in the two sections of the impugned Act  quite clearly  and  explicitly limits the exercise of  the  powers conferred by them to the purposes specifically mentioned  in the sections and to no other purpose. Apart  from the limitations and conditions for the  exercise of  the powers contained in the body of the two sections  as hereinbefore mentioned, there are two provisos to s. 2(1)(a) which  are  important.  Under the first proviso  the  orders made under s. 2(1)(a) can only remain (1)  [1950] S.C.R. 594. 42 (2) [1950] S.C.R. 759. 324 in  force for two months from the making thereof.   Further, there is another proviso permitting the aggrieved person  to make a representation to the State Government which may,  on consideration thereof, modify, confirm or rescind the order. A power the exercise of which is conditioned by the positive requirement  of  the existence of the  satisfaction  of  the authority  as to the necessity for making the order for  the

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specific purposes mentioned in the section and the effect of the  exercise  of  which is to remain  in  operation  for  a limited  period  only  and  is  liable  to  be  modified  or rescinded  upon a representation being made cannot,  in  our opinion,   in  view  of  the  attending  circumstances,   be characterised  as  unreasonable and outside  the  protection given by Art. 19(2) or Art. 19(6).  Under el. (b) of  sub-s. (1) of s. 2. also there are several conditions, namely, that the  matter required to be published must not be  more  than two columns, that adquate remuneration must be paid for such publication  and  that such requirement cannot  prevail  for more  than  one week.  A consideration of  these  safeguards must,   in  our  opinion,  have  an  important  bearing   in determining  the reasonableness of the restrictions  imposed by  s.  2.  The prevailing circumstances which  led  to  the passing  of the statute, the urgency and extent of the  evil of communal antagonism and hatred which must be combated and prevented,  the  facility  with  which  the  evil  might  be aggravated  by  partisan news and views published  in  daily newspapers  having  large  circulation  and  the  conditions imposed  by the section itself on the exercise of the  power conferred  by  it must all be taken  into  consideration  in judging  the reasonableness or otherwise of the law and,  so judged,  s.  2  must  be held  to  have  imposed  reasonable restrictions  on  the exercise of the rights  guaranteed  by Arts. 19(1)(a) and 19(1)(g) in the interest of public  order and  of the general public and is protected by  Arts.  19(2) and 19(6). Learned  counsel appearing for the petitioner Virendra  also maintains  that  assuming  that s.  2(1)(a)  is  valid,  the Notifications  actually issued thereunder are much too  wide in language and cannot be supported.  The 325 operative  part of the Notification prevents the  petitioner from publishing any article, news item, letter or any  other matter of any character whatsoever relating to or  connected with  the  "save  Hindi agitation".  It  is  said  that  the petitioner  cannot even publish a report or a letter from  a correspondent  against  the it save Hindi  agitation  ".  It cannot  publish a report of the statement made on the  floor of  the House by the Prime Minister deprecating the  "  save Hindi  agitation ". This argument appears to us to  have  no real substance.  If the section is good-and that is what  we hold  it  to be and that is what, for the purposes  of  this part of the argument, learned counsel is prepared to assume- then the section has conferred on the State Government  this power to be exercised if it is satisfied as to the necessity for its exercise for the purposes mentioned in the  section. In  other words the exercise of the power is made  dependent on  the subjective satisfaction of the State  Government  or its  delegate.  If the State Government or its  delegate  is satisfied  that for the purposes of achieving the  specified objects  it is necessary to prohibit the publication of  any matter relating to the " save Hindi agitation " then for the court  to say that so much restriction is not  necessary  to achieve  those  objects  is  only  to  substitute  its   own satisfaction  for  that  of  the  State  Government  or  its delegate.  The authority before making the order had applied its  mind and had made its estimate of the general trend  of the policy of these papers and their possible reactions  and had  formed its satisfaction as to the necessity for  making the  orders  founded on the several  articles  published  in these papers between May 30, 1957, and July 8, 1957, wherein the  petitioner  had  systematically  published  matters  in support  of the agitation and its disapproval of  everything

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which  might run counter to that agitation.  It is  admitted that the policy of the papers is to support the " save Hindi agitation ". Therefore, a grievance that the papers are  not allowed  even  to  publish anything  against  the  agitation sounds  hollow, wholly unconvincing and of no  substance  at all.  It may not be unreasonable for the Government to  hold the opinion, in 326 view of the antecedents and policy of these papers that they will not publish any news or views running counter to  their policy without adverse comments.  Further, if there  happens to  be  a change in their policy there will  be  nothing  to prevent  the petitioner from making a representation to  the State Government asking it to modify its Notifications.   In our  view, having regard to the body of s. 2(1)(a)  and  the two  provisos  thereto,  namely, the conditions  as  to  the satisfaction of the authority in respect of certain  matters specified in the section, the time limit as to the  efficacy of the Notifications and the right to make a  representation given  to  the aggrieved party makes this  grievance  wholly illusory. It is said that the Notifications should have been qualified so as to prohibit the publication of any matter relating  to the   "  save  Hindi  agitation  "  which  was   likely   to prejudicially  affect  the  public order.   Suppose  such  a qualification  had  been super-added, then there  should  be somebody   who  would  have  to  judge  whether  any   given publication did or did not affect the public order.  If  the editor  claimed that it did not but the State held  that  it did  who would decide and when ? It would obviously  be  the court   then  which  would  have  to  decide   whether   the publication  was likely to prejudicially affect  the  public order.  If the Government exercised the power of seizure  to stop the circulation of the offending issue then it would do so  at  the  risk of having to satisfy the  court  that  for preventing the public order being prejudicially affected  it was  necessary to stop such circulation.  That would be  the issue before the court.  Likewise if the Government launched a  prosecution under s. 4 then also the issue would  be  the same.   That would obviously defeat the very purpose of  the section  itself  which, for this argument,  is  accepted  as valid.  Thequestion of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having  regard  to  the very nature of  the  thing  and  the surrounding  circumstances, left by the section entirely  to the  subjective  satisfaction of the Government and  if  the Government exercises that power after being 327 satisfied  that  it is necessary so to do for  the  purposes mentioned  in the section and if the Notification is  within the  section, in the sense that it directs or prohibits  the doing  of something which the section itself authorises  the Government  to  direct  or prohibit,  then  nothing  further remains  to  be considered.  The’ only issue that  can  then arise  will  be whether the Notification has  been  complied with  and the court will only have to decide  whether  there has been a contravention of the Notification.  To  introduce the  suggested qualification in the Notification will be  to make the exercise of the power which is by the section  left to  the subjective satisfaction of the Government  dependent on an objective test subject to judicial scrutiny.  That, as we  have  explained,  will defeat the very  purpose  of  the section itself. It is lastly contended that the impugned Notifications  have been  made  mala fide in order only to  suppress  legitimate

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criticisms  and  fair comments on public affairs.   We  have perused the articles annexed to the affidavit in  opposition and  referred to in the Notifications themselves and we  are not  satisfied  that  no  reasonable  person  reading  those articles could entertain the opinion and feel satisfied that it  was  necessary  to  make  the  order  for  the  purposes mentioned  in  the section.  We are unable to hold,  on  the materials before us, that the Notifications issued under s.2 were mala fide. The observations hereinbefore made as to the safeguards  set forth  in  the  provisions of s.  2(1)(a)  and  (b)  cannot, however,  apply  to  the provisions of s.  3.  Although  the exercise of the powers under s. 3(1) is subject to the  same condition as to the satisfaction of the State Government  or its  delegate  as  is mentioned in  s.  2(1)(a),  there  is, however,  no time limit for the operation of an  order  made under  this section nor is there any provision made for  any representation  being  made to the  State  Government.   The absence  of  these  safeguards in s.  3  clearly  makes  its provisions  unreasonable and the  learned  Solicitor-General obviously felt some difficulty in supporting the validity of this 328 section.   It is surprising how in the same statute the  two sections came to be worded differently. For  reasons stated above petition No. 95 of 1957  (Virendra v.  The  State of Punjab) which  impugns  the  Notifications issued  under s. 2(1)(a) must be dismissed and petition  No. 96  of  1957  (K.  Narendra v. The State of  Pun  ab)  which challenges  s. 3 must be allowed.  In the  circumstances  of these  cases  we  make no order as to  the  costs  of  these applications. Petition No. 95 of 1957 dismissed. Petition No. 96 of 1957 allowed.