MANU/SC/0007/1950Equivalent Citation: AIR1950SC129, [1950]1SCR605

IN THE SUPREME COURT OF INDIA

Petition No. XXIX of 1950
Decided On: 26.05.1950
Appellants:Brij Bhushan and Ors.
Vs.
Respondent:The State of Delhi
Hon'ble Judges/Coram:
H.J. Kania, C.J., Saiyid Fazl Ali, M. Patanjali Sastri, M.C. Mahajan, B.K. Mukherjea and
Sudhi Ranjan Das, JJ.
Case Note:
Constitution of India, 1950 Art. 19, cls.(1)(a) and (2) - East Punjab Public
Safety Act, 1949, sec.7(1) ( c) - Fundamental Right to freedom of speech and
__expression- Whether imposition of pre-censorship by law on newspapers to
secure public safety or causing public disorder, "undermines the security of, or
tends to overthrow, the State"-Scope of Art.19, cl.(2)-Validity of .
JUDGMENT
M. Patanjali Sastri, J.
1.This is an application under article 32 of the Constitution praying for the issue of
writs of certiorari and prohibition to the respondent, the Chief Commissioner of Delhi,
with a view to examine the legality of and quash the order made by him in regard to an
English weekly of Delhi called the Organizer of which the first applicant is the printer
and publisher, and the second is the editor. On 2nd March, 1950, the respondent, in
exercise of powers conferred on him by section 7(1)(c) of the East Punjab Public Safety
Act, 1949, which has been extended to the Delhi Province and is hereinafter referred to
as the impugned Act, issued the following order :
"Whereas the Chief Commissioner, Delhi, is satisfied that Organizer, an English
weekly of Delhi, has been publishing highly objectionable matter constituting a
threat of public law and order and that action as is hereinafter mentioned is
necessary for the purpose of preventing or combating activities prejudicial to
the public safety or the maintenance of public order.
Now therefore in exercise of the powers conferred by section 7(1)(c) of the East
Punjab Public Safety Act, 1949, as extended to the Delhi Province, I, Shankar
Prasad, Chief Commissioner, Delhi, do by this order require you Shri Brij
Bhushan, Printer and Publisher and Shri K. R. Halkani, Editor of the aforesaid
paper to submit for scrutiny, in duplicate, before publication, till further orders,
all communal matter and news and views about Pakistan including photographs
and cartoons other than those derived from official sources or supplied by the
news agencies, viz., Press Trust of India, United Press of India and United Press
of America to the Provincial Press Officer, or in his absence, to Superintendent
of Press Branch at his office at 5, Alipur Road, Civil Lines, Delhi, between the
hours 10 a.m. and 5 p.m. on working days."

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2. The only point argued before us relates to the constitutional validity of section 7(1)
(c) of the impugned Act which, as appears from its preamble, was passed "to provide
special measures to ensure public safety and maintenance of public order." Section 7(1)
(c) under which the aforesaid order purports to have been made reads (so far as
material here) as follows :-
"The Provincial 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 prejudicial to the public safety or the maintenance of
public order may, by order in writing addressed to a printer, publisher or editor
require that any matter relating to a particular subject or class of subjects shall
before publication be submitted for scrutiny."
3 . The petitioners claim that this provision infringes the fundamental right to the
freedom of speech and expression conferred upon them by article 19(1)(a) of the
Constitution inasmuch as it authorises the imposition of a restriction on the publication
of the journal which is not justified under clause (2) of that article.
4 . There can be little doubt that the imposition of pre-censorship on a journal is a
restriction on the liberty of the press which is an essential part of the right to freedom
of speech and expression declared by article 19(1)(a). As pointed out by Blackstone in
his Commentaries
"the liberty of the press consists in laying no previous restraint upon
publications, and not in freedom from censure for criminal matter when
published. Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the press
[Blackstone's Commentaries, Vol. IV, pp. 151, 152].
The only question therefore is whether section 7(1)(c) which authorises the imposition
of such a restriction falls within the reservation of clause (2) of article 19.
5. As this question turns on considerations which are essentially the same as those on
which our decision in Petition No. XVI of 1950 [Romesh Thappar v. The State of Madras,
supra p. 594] was based, our judgment in that case concludes the present case also.
Accordingly, for the reasons indicated in that judgment, we allow this petition and
hereby quash the impugned order of the Chief Commissioner, Delhi, dated the 2nd
March, 1950.
Saiyid Fazl Ali, J.
6. The question raised in this case relates to the validity of section 7(1)(c) of the East
Punjab Public Safety Act, 1949 (as extended to the Province of Delhi), which runs as
follows :-
"The Provincial 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 prejudicial to the public safety or the maintenance of
public order, may, by order in writing addressed to a printer, publisher or
editor -
***
(c) require that any matter relating to a particular subject or class of subjects

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 shall before publication be submitted for scrutiny;"
7. It should be noted that the provisions of sub-clause (c) are not in general terms but
a confined to a "particular subject or class of subjects," and that having regard to the
context in which these words are used, they must be connected with "public safety or
the maintenance of public order."
8 . The petitioners, on whose behalf this provision is assailed, are respectively the
printer (and publisher) and editor of an English weekly of Delhi called Organizer, and
they pray for the issue of writs of certiorari and prohibition to the Chief Commissioner,
Delhi, with a view "to examine and review the legality" of and "restrain the operation"
of and "quash" the order made by him on the 2nd March, 1950, under the impugned
section, directing them "to submit for scrutiny, in duplicate, before publication, till
further orders, all communal matter and news and views about Pakistan including
photographs and cartoons other than those derived from official sources or supplied by
the news agencies..." The order in question recites among other things that the Chief
Commissioner is satisfied that the Organizer has been publishing highly objectionable
matter constituting a threat to public law and order and that action to which reference
has been made is necessary for the purpose of preventing or combating activities
prejudicial to the public safety or the maintenance of public order. It is contended on
behalf of the petitioners that notwithstanding these recitals the order complained
against is liable to be quashed, because it amounts to an infringement of the right of
freedom of speech and expression guaranteed by article 19(1)(a) of the Constitution.
Articles 19(1)(a) and (2), which are to be read together, run as follows :-
"19. (1) All 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 in so far as it relates to, or prevent the State from making any law
relating to, libel, slander, defamation, contempt of Court or any matter which
offends against decency or morality or which undermines the security of, or
tends to overthrow, the State."
8. It is contended that section 7(1)(c) of the Act under which the impugned order has
been made, can-not be saved by clause (2) of article 19 of the Constitution, because it
does not relate to any matter which undermines the security of, or tends to overthrow,
the State. Thus the main ground of attack is that the impugned law is an infringement
of a fundamental right and is not saved by the so-called saving clause to which
reference has been made.
9. There can be no doubt that to impose per-censorship on a journal, such as has been
ordered by the Chief Commissioner in this case, is a restriction on the liberty of the
press which is included in the right to freedom of speech and expression guaranteed by
article 19(1)(a) of the Constitution, and the only question which we have therefore to
decide is whether clause (2) of article 19 stands in the way of the petitioners.
10. The East Punjab Public Safety Act, 1949, of which section 7 is a part, was passed
by the Provincial Legislature in exercise of the power conferred upon it by section 100
of the Government of India Act, 1935, is read with Entry 1 of List II of the Seventh
Schedule to that Act, which includes among other matters "public order." This

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expression in the general sense may be construed to have reference to the maintenance
of what is generally known as law and order in the Province, and this is confirmed by
the words which follow it in Entry 1 of List II and which have been put within brackets,
viz., "but not including the use of naval, military or air forces or any other armed forces
of the Union in aid of the civil power." It is clear that anything which affects public
tranquility within the State or the Province will also affect public order and the State
Legislature is therefore competent to frame laws on matters relating to public
tranquillity and public order. It was not disputed that under the Government of India
Act, 1935 (under which the impugned Act was passed) it was the responsibility of each
Province to deal with all internal disorders whatever their magnitude may be and to
preserve public tranquillity and order within the Province.
11. At this stage, it will be convenient to consider the meaning of another expression
"public safety" which is used throughout the impugned Act and which is also chosen by
its framers for its title. This expression, though it has been variously used in different
contexts (see the Indian Penal Code, Ch. XIV), has now acquired a well-recognized
meaning in relation to an Act like the impugned Act, as a result of a long course of
legislative practice, and may be taken to denote safety or security of the State. In this
sense, it was used in the Defence of the Realm (Consolidation) Act, 1914, as well as the
Defence of India Act, and this is how it was judicially interpreted in Rex v. Governor of
Worm-wood Scrubs Prison [1920] 2 K.B. 305. The headnote of this case runs as follows
:-
"By section 1 of the Defence of the Realm (Consolidation) Act, 1914, power was
given to His Majesty in Council 'during the continuance of the present war to
issue regulations....for securing the public safety and the defence of the realm'
:-
Held, that the regulations thereby authorized were not limited to regulations for
the protection of the country against foreign enemies, but included regulations
designed for the prevention of internal disorder and rebellion."
12. Thus 'public order' and 'public safety' are allied matters, but, in order to appreciate
how they stand in relation to each other, it seems best to direct our attention to the
opposite concepts which we may, for convenience of reference, respectively label as
'public disorder' and 'public unsafety'. If 'public safety' is, as we have seen, equivalent
to 'security of the State', what I have designated as public unsafety may be regarded as
equivalent to 'insecurity of the State'. When we approach the matter in this way, we find
that while 'public disorder' is wide enough to cover a small riot or an affray and other
cases where peace is disturbed by, or affects, a small group of persons, 'public
unsafety' (or insecurity of the State), will usually be connected with serious internal
disorders and such disturbances of public tranquillity as jeopardize the security of the
State.
13. In order to understand the scope of the Act, it will be necessity to note that in the
Act "maintenance of public order" always occurs in juxtaposition with "public safety",
and the Act itself is called "The East Punjab Public Safety Act." The prominence thus
given to 'public safety' strongly suggests that the Act was intended to deal with serious
cases of public disorder which affect public or the security of the State, or cases in
which, owning to some kind of emergency or a grave situation having arisen, even
public disorders of comparatively small dimensions may have far-reaching effects on
the security of the State. It is to be noted that the Act purports to provide "special
measures to ensure public and maintenance of public order." The words "special

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measures" are rather important, because they show that the Act was not intended for
ordinary cases or ordinary situations. The ordinary cases are provided for by the Penal
Code and other existing laws, and with these the Act which purports to be of a
temporary Act is not apparently concerned. It is concerned with special measures which
would presumably be required for special cases or special situations. Once this
important fact is grasped and the Act is viewed in the proper perspective, much of the
confusion which has been created in the course of the arguments will disappear. The
line of argument advanced on behalf of the petitioners is that since the Act has been
passed in exercise of the power granted by the expression "public order," used in the
Government of India Act, which is a general term of wide import, and since it purports
to provide for the maintenance of public order, its provisions are intended or are liable
to be used for all cases of breaches of public order, be they small or insignificant
breaches or those of a grave or serious nature. This is, in my opinion, approaching the
case from, a wrong angle. The Act is a piece of special legislation providing for special
measures and the central idea dominating it is public safety and maintenance of public
order in a situation requiring special measures.
14. It was argued that "public safety" and "maintenance of public order " are used in
the Act disjunctively and they are separated by the word "or" and not 'and", and
therefore we cannot rule out the possibility of the Act providing for ordinary as well as
serious cases of disturbance of public order and tranquillity. This, as I have already
indicated, is a somewhat narrow and technical approach to the question. In construing
the Act, we must try to get at its aim and purpose, and before the Act is declared to be
invalid, we must see whether it is capable of being so construed as to bear a reasonable
meaning consistent with its validity. We therefore cannot ignore the fact that
preservation of public safety is the dominant purpose of the Act and that it is a special
Act providing for special measures and therefore it should not be confused with an Act
which is applicable to ordinary situations and to any and every trivial case of breach of
public order. In my opinion, the word "or" is used here not so much to separate two
wholly different concepts as to show that they are closely allied concepts and can be
used almost interchangeably in the context. I think that "public order" may well be
paraphrased in the context as public tranquillity and the words "public safety" and
"public order" may be read as equivalent to "security of the State" and "public
tranquillity."
15. I will now advert once more to clause (2) of article 19 and state what I consider to
be the reason for inserting in it the words "matter which undermines the security of, or
tends to overthrow, the State." It is well recognized in all systems of law that the right
to freedom of speech and expression or freedom of the press means that any person
may writ or say what he pleases so long as he does not infringe the law relating to libel
or slander or to blasphemous, obscene or seditious words or writings : (see Halsbury's
Laws of England, 2nd Edition, Vol. II, page 391). This is practically what has been said
in clause (2) of article 19, with this difference only that instead of using the words "law
relating to sedition," the framers of the Constitution have used the words mentioned
above. It is interesting to note that sedition was mentioned in the original draft of the
Constitution, but subsequently that word was dropped and the words which I have
quoted were inserted. I think it is not difficult to discover the reason of this change and
I shall briefly state in my own words what I consider it to be.
16. The latest pronouncement by the highest Indian tribunal as to the law of sedition is
to be found in Niharendu Dutt Majumdar v. The King MANU/FE/0005/1942 : [1942]
F.C.R. 38 which has been quoted again and again and in which Gwyer C.J. laid down
that public disorder, or the reasonable anticipation or likelihood of public disorder is the

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gist of the offence of sedition and "the acts or words complained of must either incite to
disorder or must be such as to satisfy reasonable men that that is their intention or
tendency." For this view, the learned Chief Justice relied on certain observations of
Fitzgerald J. in R. v. Sullivan [1868] 11 Cox. C.C. 44, and he also added that he was
content to adopt "the words of that learned Judge which are to be found in every book
dealing with this branch of the criminal law." There is no doubt that what Gwyer C.J.
has stated in that case represents the view of a number of Judges and authors and was
also the view of Sir James Stephen in regard to whom Cave J. in his charge to the jury
in a case relating to the law of sedition [R. v. Burns [1886] 16 Cox. 355] said :-
"The law upon the question of what is seditious and what is not is to be found
state very clearly in a book by Stephen J. who has undoubtedly a greater
knowledge of criminal law than any other Judge who sits upon the Bench, and
what he has said upon the subject of sedition was submitted to the other
Judges, who sometime back were engaged with him in drafting a criminal code,
and upon their report the Commissioners say that his statement of law appears
to them to be stated accurately as it exists at present."
17. The decision of Gwyer C.J. held the field for several years until the Privy Council,
dealing with a case under the Defence of India Rules, expressed the view in King
Emperor v. Sadhashiv Narayan Bhalerao 74 I.A. 89 that the test laid down by the
learned Chief Justice was not applicable in India where the offence under section 124A
of the Indian Penal Code should be construed with reference to the words used in that
section. They also added :-
"The word 'sedition' does not occur either in section 124A or in the Rule; it is
only found as a marginal note to section 124A, and is not an operative part of
the section, but merely provides the name by which the crime defined in the
section will be known. There can be no justification for restricting the contents
of the section by the marginal note. In England there is no statutory definition
of sedition; its meaning and content have been laid down in many decisions,
some of which are referred to by the Chief Justice, but these decisions are not
relevant when you have a statutory definition of that which is termed sedition
as we have in the present case.
18. Their Lordships are unable to find anything in the language of either section 124A
or the Rule which could suggest that 'the acts or words complained of must either incite
to disorder or must be such as to satisfy reasonable men that this is their intention or
tendency.'"
19. The framers of the Constitution must have therefore found themselves face to face
with the dilemma as to whether the word "sedition" should be used in article 19(2) and
if it was to be used in what sense it was to be used. On the one hand, they must have
had before their mind the very widely accepted view supported by numerous authorities
that sedition was essentially an offence against public tranquillity and was connected in
some way or other with public disorder; and, on the other hand, there was the
pronouncement of the Judicial Committee that sedition as defined in the Indian Penal
Code did not necessarily imply any intention or tendency to incite disorder. In these
circumstances, it is not surprising that they decide not to use the word "sedition" in
clause (2) but used the more general words which cover sedition and everything else
which makes sedition such a serious offence. That sedition does undermine the security
of the State is a matter which cannot admit of much doubt. That it undermines the
security of the State usually through the medium of public disorder is also a matter on

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which eminent Judges and jurists are agreed. Therefore it is difficult to hold that public
disorder or disturbance of public tranquillity are not matters which undermine the
security of the State.
2 0 . It will not be out of place to quo there the following passage from Stephen's
Criminal Law of England Vol. II, pp. 242 and 243:-
"It often happens, however, that the public peace is disturbed by offence which
without tending to the subversion of the existing political constitution
practically subvert the authority of the Government over a greater or less local
area for a longer or shorter time. The Bristol riots in 1832 and the Gordon riots
in 1780 are instances of this kind. No definite line can be drawn between
insurrections of this sort, ordinary riots, and unlawful assemblies. The
difference between a meeting stormy enough to cause well-founded fear of a
breach of the peace, and a civil war the result of which may determine the
course of a nation's history for centuries, is a difference of degree. Unlawful
assemblies, riots, insurrections rebellions, levying of war, are offences which
run into each other, and are not capable of being marked off by perfectly
definite boundaries. All of them have in common one feature, namely, that the
normal tranquillity of a civilised society is in each of the cases mentioned
disturbed either by actual force or at least by the show and threat of it.
Another class of offences against public tranquillity are those in which no actual
force is either employed or displayed, but in which steps are taken tending to
cause it. These are the formation of secret societies, seditious conspiracies,
libels or words spoken.
Under these two heads all offences against the internal public tranquillity of the
State may be arranged."
21. This passage brings out two matters with remarkable clarity. It shows firstly that
sedition is essentially an offence against public tranquillity and secondly that broadly
speaking there are two classes of offences against public tranquillity : (a) those
accompanied by violence including disorders which affect tranquillity of a considerable
number of persons or an extensive local area, and (b) those not accompanied by
violence but tending to cause it, such as seditious utterances, seditious conspiracies,
etc. Both these classes of offence are such as will undermine the security of the State or
tend to overthrow it if left unchecked, and, as I have tried to point out, there is a good
deal of authoritative opinion in favour of the view that the gravity ascribed to sedition is
due to the fact that it tends to seriously affect the tranquillity and security of the State.
In principle, then, it would not have been logical to refer to sedition in clause (2) of
article 19 and omit matters which are no less grave and which have equal potentiality
for undermining the security of the take. It appears that the framers of the Constitution
preferred to adopt the logical course and have used the more general and basic words
which are apt to cover sedition as well as other matters which are as detrimental to the
security of the State as sedition.
22. If the Act is to be viewed a is have suggested, it is difficult to hold that section 7(1)
(c) falls outside the ambit of article 19(2). That clause clearly states that nothing in
clause (1)(a) shall affect the operation of any existing law relating to any matter which
undermines the security of, or tends to overthrow, the State. I have tried to show that
public disorders and disturbance of public tranquillity do undermine the security of the
State and if the Act is a law aimed at preventing such disorders it fulfils the requirement

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of the Constitution. It is needless to add that the word "State" has been defined in
article 12 of the Constitution to include "the Government and Parliament of India and
the Government and Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India."
23. I find that section 20 of the impugned Act provides that the Provincial Government
may by notification declare that the whole or any part of the Province as may be
specified in the notification is a dangerously disturbed area. This provision has some
bearing on the aim and object of the act, and we cannot overlook it when considering
its scope. It may be incidentally mentioned that we have been informed that, under this
section, Delhi Province has been notified to be a "dangerously disturbed area."
24. It must be recognized that freedom of speech and expressions is one of the most
valuable rights guaranteed to a citizen by the Constitution and should be jealously
guarded by the Courts. It must also be recognised that free political discussion is
essential for the proper functioning of a democratic government, and the tendency of
modern jurists is to deprecate censorship though they all agree that "liberty of the
press" is not to be confused with its "licentiousness." But the Constitution itself has
prescribed certain limits for the exercise of the freedom of speech and expression and
this Court is only called upon to see whether a particular case comes within these limit.
In my opinion, the law which is impugned is fully saved by article 19(2) and if it cannot
be successfully assailed it is not possible to grant the remedy which the petitioners are
seeking here.
25. As has been stated already, the order which is impugned in this case recites that
the weekly Organizer has been publishing highly objectionable matter constituting a
threat of public law and order" and that the action which it is proposed to take against
the petitioners "is necessary for the purpose of preventing or combating activities
prejudicial to public safety or the maintenance of public order." These facts are
supported by an affidavit sworn by the Home Secretary to the Chief Commissioner, who
also states among other things that the order in question was passed by the Chief
Commissioner in consultation with the Central Press Advisory Committee, which is an
independent body elected by the All-India Newspaper Editors' Conference and is
composed of representatives of some of the leading papers such as The Hindustan
Times, Statesman, etc. In my opinion, there can be no doubt that the Chief
Commissioner has purported to act in this case within the sphere within which he is
permitted to act under the law, and it is beyond the power of this Court to grant the
reliefs claimed by the petitioners.
26. In these circumstances, I would dismiss the petitioners' application.
27. Petition allowed.

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