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(1960) 2 SCR 821 : AIR 1960 SC 633 : 1960 Cri LJ 1002

In the Supreme Court of India

(BEFORE B.P. SINHA, C.J. AND P.B. GAJENDRAGADKAR, K. SUBBA RAO, K.C. DAS GUPTA AND
J.C. SHAH, JJ.)

Superintendent, Central Prison, Fatehgarh and Another …

Appellants;
Versus
Dr. Ram Manohar Lohia … Respondent.
Criminal Appeal No. 76 of 1956* , decided on January 21, 1960
Advocates who appeared in this case :
K.L. Misra, Advocate-General for the State of Uttar Pradesh (G.C. Mathur and C.P.
Lal, Advocates for the Appellants;
N.S. Bindra, Senior Advocate (Amicus Curiae), Advocate for the Respondent.
The Judgment of the Court was delivered by
K. SUBBA RAO, J.— This appeal raises the question of interpretation of the words “in
the interest of public order” in Article 19(2) of the Constitution.
2. The facts are not in dispute and they lie in a small compass. The respondent Dr
Ram Manohar Lohia, is the General Secretary of the Socialist Party of India. The U.P.
Government enhanced the irrigation rates for water supplied from canals to cultivators.
The party to which the respondent belongs resolved to start an agitation against the
said enhancement for the alleged reason that it placed an unbearable burden upon the
cultivators. Pursuant to the policy of his party, the respondent visited Farrukhabad and
addressed two public meetings wherein he made speeches instigating the audience
not to pay enhanced irrigation rates to the Government. On July 4, 1954, at 10 p.m.
he was arrested and produced before the City Magistrate, Farrukhabad, who remanded
him for two days. After investigation, the Station officer, Kaimganj, filed a charge-
sheet against the respondent before Sri P.R. Gupta, a Judicial Officer at Farrukhabad.
On July 6, 1954, the Magistrate went to the jail to try the case against the respondent,
but the latter took objection to the trial being held in the jail premises. When the
Magistrate insisted upon proceeding with the trial, the respondent obtained an
adjournment on the ground that he would like to move the High Court for transfer of
the case from the file of the said Magistrate. Thereafter the respondent filed a petition
before the High Court for a writ of habeas corpus on the ground, among others, that
Section 3 of the U.P. Special Powers Act (Act 14 of 1932), 1932; (hereinafter called
“the Act”) was void under the Constitution.
3. In the first instance the petition came up for disposal before a Division Bench of
the High Court at Allahabad consisting of Desai and Chaturvedi, JJ. Elaborate
arguments were addressed before them covering a wide field. The learned Judges
delivered differing judgments expressing their views on the main points raised before
them. They referred the matter to the Chief Justice for obtaining the opinion of a third
Judge on the following two points: “(i) Was the provision of Section 3 of the U.P.
Special Powers Act of 1932 making it penal for a person by spoken words to instigate a
class of persons not to pay dues recoverable as arrears of land revenue, inconsistent
with Article 19(1)(a) of the Constitution on 26th of January, 1950?” and “(ii) if so, was
it in the interests of public order? The petition was placed before Agarwala, J., as a
third Judge, who agreeing with Desai, J., gave the following answers to the questions
referred to him:
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“Question: (i) The provision of Section 3 of the U.P. Special Powers Act, 1932,
making it penal for a person by spoken words to instigate a class of persons not to
pay dues recoverable as arrears of land revenue, was inconsistent with Article 19(1)
(a) of the Constitution on the 26th January, 1950.
Question: (ii) The restrictions imposed by Section 3 of the U.P. Special Powers
Act, 1932, were not in the interests of public order.”
In the usual course the matter was placed before the two learned Judges who first
heard the case and they, on the basis of the majority view, allowed the petition and
directed the respondent to be released. The State has preferred the present appeal
against the said order of the High Court.
4. The learned Advocate-General, appearing for the appellant, stated before us that
he did not propose to canvass the correctness of the majority view on one of the
important points raised in the case, namely, that the effect of the passing of the Act
did not ipso facto deprive a citizen of his freedom of speech guaranteed under Article
19(1)(a) of the Constitution and its validity should be tested by the provisions of
Article 19(2) thereof. He did not concede the validity of the finding in this regard but
assumed its correctness for the purpose of this case. Nothing further, therefore, need
be mentioned on this point.
5. The gist of the argument of the learned Advocate-General may be stated thus:
The legislature can make laws placing reasonable restrictions on the rights of a citizen
to freedom of speech and expression in the interests of public order among other
grounds. The words “in the interests of public order” are wider in connotation than the
words “for the maintenance of public order”. Laws are rules made by the legislature for
the governance of the people in the State which they are bound to obey, and they are
enacted to keep public peace and order. The avowed object of Section 3 of the Act was
to prevent persons from instigating others to break the laws imposing a liability upon
a person or class of persons to pay taxes and other dues to the State, any authority or
to any land-owner. The impugned section was enacted in the interests of public order
and therefore the section was protected by Article 19(2) of the Constitution. The
learned Advocate-General pointed out that the object of the State in preferring this
appeal was to obtain the decision of this Court on the question of constitutional
validity of Section 3 of the Act and not to pursue the matter against Dr Lohia.
6. The respondent was not present at the time the appeal was heard and was not
represented by an advocate. As the question raised was an important one, we
requested Mr N.S. Bindra to assist the Court, and he kindly agreed to do so. He
supported the majority view of the High Court. We record our thanks for his
assistance.
7. At the outset it would not be out of place to notice briefly the history of the Act.
The Act was originally passed in the year 1932 during the British rule. In an attempt
to offset the campaign of non-payment of taxes and other forms of agitation resorted
to by the Congress Party, originally it was put on the statute book for one year; but in
1940 when the State was under the “Governor's rule”, the Act was made permanent.
Under the Act, Sections 1 and 2 came into effect immediately on the passing of the
Act and Section 1(2) enabled the Government by notification to extend all or any of
the remaining sections to any district or to any part of a district in the United
Provinces. After the Constitution, the Act was not repealed but was allowed to
continue, with necessary adaptations, in the statue book. Between April and June,
1954, the State Government extended the provisions of the Act to 33 districts
including Farrukhabad district.
8. Now let us look at the provisions of the Act to ascertain its scope and field of
operation. The preamble discloses that it was enacted in 1932 to make provision
against and to take powers to deal with instigation to the illegal refusal of the payment
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of certain liablities and Section 2 defines “liability” to mean “land revenue or any sum
recoverable as arrears of land revenue or any tax, rate, cess or other dues or amount
payable to Government or to any local authority, or rent of agricultural land or
anything recoverable as arrears of or along with such rent”. Section 3 prescribes the
punishment for instigation to the non-payment of a liability. As the argument centres
round this section, it will be convenient to read the same:
“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.”
Section 4 says that any person to whom an arrear of liability is due may apply to the
Collector to realize it and the Collector is authorized to realise the same as an arrear of
land revenue. The impugned section may be dissected into the following components:
(i) whoever by word, either spoken or written, or by signs or by visible representations
or otherwise, (ii) instigates, (iii) expressly or by implication, (iv) any person or class of
persons, (v) not to pay any liability, (vi) to defer payment of any liability, (vii) does an
act with intent that any words etc. shall be communicated to any person or class of
persons, (viii) with the knowledge that it is likely that such words etc. shall be
communicated to any person or class of persons, (ix) such communication may be
made directly, or indirectly and (x) shall be punished with imprisonment or with fine
or with both. Under this section, a wide net has been cast to catch in a variety of acts
of instigation ranging from friendly advice to a systematic propaganda not to pay or to
defer payment of liability to Government, any authority or to any person to whom rent
is payable in respect of agricultural land. The meaning of this section, read along with
Sections 2 and 4, can be ascertained more clearly by illustration than by definition. (1)
A instigates B not to pay any liability to Government, any authority or to any
landowner; (2) A instigates B to defer payment of any liability to Government, any
authority or landlord; (3) A instigates a class of persons to do the same; (4) A may do
any one of the foregoing things not only by word, but also by signs, visible
representations or otherwise; (5) A may do any one of the things bona fide either to
get the claim decided in a court of law or to gain time to get the law changed; (6) A
may instigate B not to pay any amount due to Government or to any authority, but the
said amount can be recovered by the authority concerned as arrears of land revenue;
(7) A may tell C with intention or with knowledge that the said instigation may be
communicated to B so that he may not pay; (8) any statement by A to C may imply
such instigation. In its wide amplitude the section takes in the innocent and the guilty
persons, bona fide and mala fide advice, individuals and class, abstention from
payment and deferment of payment, expressed or implied instigation, indirect or
direct instigation, liability due not only to Government but to any authority or
landholder. In short, no person, whether legal adviser or a friend or a well-wisher of a
person instigated can escape the tentacles of this section, though in fact the rent due
has been collected through coercive process or otherwise.
9. We shall now proceed to consider the constitutional validity of this section. The
material portions of the relevant provisions of the Constitution may now be read:
“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
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existing law, or prevent the State from making any law, insofar as such law imposes
reasonable restrictions on the exercise of the right conferred by the said sub-clause
in the interests of 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.”
clause (2) of Article 19 was amended by the Constitution (First Amendment) Act,
1951. By this amendment several new grounds of restrictions upon the freedom of
speech have been introduced, such as friendly relations with foreign States, public
order and incitement to an offence. It is self-evident and common place that freedom
of speech is one of the bulwarks of a democratic form of Government. It is equally
obvious that freedom of speech can only thrive in an orderly society clause (2) of
Article 19, therefore, does not affect the operation of any existing law or prevent the
State from making any law insofar as such law imposes reasonable restrictions on the
exercise of the right of freedom of speech in the interest of public order, among
others. To sustain the existing law or a new law made by the State under clause (2) of
Article 19, so far as it is relevant to the present enquiry, two conditions should be
complied with viz. (i) the restrictions imposed must be reasonable; and (ii) they
should be in the interests of public order. Before we consider the scope of the words of
limitation, “reasonable restrictions” and “in the interests of”, it is necessary to
ascertain the true meaning of the expression “public order” in the said clause. The
expression “public order” has a very wide connotation. Order is the basic need in any
organised society. It implies the orderly state of society or community in which
citizens can peacefully pursue their normal activities of life. In the words of an
eminent Judge of the Supreme Court of America “the essential rights are subject to
the elementary need for order without which the guarantee of those rights would be a
mockery”. The expression has not been defined in the Constitution, but it occurs in List
II of its Seventh Schedule and is also inserted by the Constitution (First Amendment)
Act, 1951 in clause (2) of Article 19. The sense in which it is used in Article 19 can
only be appreciated by ascertaining how the Article was construed before it was
inserted therein and what was the defect to remedy which the Parliament inserted the
same by the said amendment. The impact of clause (2) of Article 19 on Article 19(1)
(a) before the said amendment was subject to judicial scrutiny by this Court in
Romesh Thappar v. State of Madras1 . There the Government of Madras, in exercise of
their powers under Section 9(1-A) of the Madras Maintenance of Public Order Act,
1949, purported to issue an order whereby they imposed a ban upon the entry and
circulation of the journal called the “Cross Roads” in that State. The petitioner therein
contended that the said order contravened his fundamental right to freedom of speech
and expression. At the time when that order was issued the expression “public order”
was not in Article 19(2) of the Constitution; but the words “the security of the State”
were there. In considering whether the impugned Act was made in the interests of
security of the State, Patanjali Sastri, J., as he then was, after citing the observation of
Stephen in his Criminal Law of England, states:
“Though all these offences thus involve disturbances of public tranquillity and are
in theory offences against public order, the difference between them being only a
difference of degree, yet for the purpose of grading the punishment to be inflicted
in respect of them they may be classified into different minor categories as has
been done by the Indian Penal Code. Similarly, the Constitution, in formulating the
varying criteria for permissible legislation imposing restrictions on the fundamental
rights enumerated in Article 19(1), has placed in a distinct category those offences
against public order which aim at undermining the security of the State or
overthrowing it, and made their prevention the sole justification for legislative
abridgement of freedom of speech and expression, that is to say, nothing less than
endangering the foundations of the State or threatening its overthrow could justify
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curtailment of the rights to freedom of speech and expression ….”

The learned Judge continued to state:
“The Constitution thus requires a line to be drawn in the field of public order or
tranquillity marking off, may be, roughly, the boundary between those serious and
aggravated forms of public disorder which are calculated to endanger the security of
the State and the relatively minor breaches of the peace of a purely local
significance, treating for this purpose differences in degree as if they were
differences in kind.”
The learned Judge proceeded further to state:
“We are therefore of opinion that unless a law restricting freedom of speech and
expression is directed solely against the undermining of the security of the State or
the overthrow of it, such law cannot fall within the reservation under clause (2) of
Article 19, although the restrictions which it seeks to impose may have been
conceived generally in the interests of public order.”
This decision establishes two propositions viz. (i) maintenance of public order is
equated with maintenance of public tranquillity; and (ii) the offences against public
order are divided into two categories viz. (a) major offences affecting the security of
the State, and (b) minor offences involving breach of purely local significance. This
Court in Brij Bhushan v. State of Delhi2 followed the earlier decision in the context of
Section 7(1)(c) of the East Punjab Public Safety Act, 1949. Fazl Ali, J., in his
dissenting judgment gave the expression “public order” a wider meaning than that
given by the majority view. The learned Judge observed at p. 612 thus:
“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.”
This observation also indicates that “public order” is equated with public peace and
safety. Presumably in an attempt to get over the effect of these two decisions, the
expression “public order” was inserted in Article 19(2) of the Constitution by the
Constitution (First Amendment) Act, 1951, with a view to bring in offences involving
breach of purely local significance within the scope of permissible restrictions under
clause (2) of Article 19. After the said amendment, this Court explained the scope of
Romesh Thapper's case1 in State of Bihar v. Shailabala Devi3 . That case was concerned
with the constitutional validity of Section 4(1)(a) of the Indian Press (Emergency
Powers) Act, 1931. It deals with the words or signs or visible representations which
incite to or encourage, or tend to incite to or encourage the commission of any offence
of murder or any cognizable offence involving violence. Mahajan, J., as he then was,
observed at p. 660:
“The deduction that a person would be free to incite to murder or other
cognizable offence through the press with impunity drawn from our decision in
Romesh Thapper case could easily have been avoided as it was avoided by Shearer,
J., who in very emphatic terms said as follows:
‘I have read and re-read the judgments of the Supreme Court, and I can find
nothing in them myself which bear directly on the point at issue, and leads me to
think that, in their opinion, a restriction of this kind is no longer permissible.’”
The validity of that section came up for consideration after the Constitution (First
Amendment) Act, 1951, which was expressly made retrospective, and therefore the
said section clearly fell within the ambit of the words “in the interest of public order”.
That apart the observations of Mahajan, J., as he then was, indicate that even without
the amendment that section would have been good inasmuch as it aimed to prevent
incitement to murder.
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10. The words “public order” were also understood in America and England as
offences against public safety or public peace. The Supreme Court of America observed
in Cantewell v. Connecticut4 thus:
“The offence known as breach of the peace embraces a great variety of conduct
destroying or menacing public order and tranquillity. It includes not only violent
acts and words likely to produce violence in others. No one would have the
hardihood to suggest that the principle of freedom of speech sanctions incitement
to riot … When clear and present danger of riot, disorder, interference with traffic
upon the public streets, or other immediate threat to public safety, peace, or order
appears, the power of the State to prevent or punish is obvious.”
The American decisions sanctioned a variety of restrictions on the freedom of speech in
the interests of public order. They cover the entire gamut of restrictions that can be
imposed under different heads in Article 19(2) of our Constitution. The following
summary of some of the cases of the Supreme Court of America given in a well-known
book on Constitutional law illustrates the range of categories of cases covering that
expression. “In the interests of public order, the State may prohibit and punish the
causing of ‘loud and raucous noise’ in streets and public places by means of sound
amplifying instruments, regulate the hours and place of public discussion, and the use
of the public streets for the purpose of exercising freedom of speech; provide for the
expulsion of hecklers from meetings and assemblies, punish utterances tending to
incite an immediate breach of the peace or riot as distinguished from utterances
causing mere ‘public inconvenience, annoyance or unrest’”. In England also Acts like
Public Order Act, 1936, Theatres Act, 1843 were passed: the former making it an
offence to use threatening, abusive or insulting words or behaviour in any public place
or at any public meeting with intent to provoke a breach of the peace or whereby a
breach of the peace is likely to be caused, and the latter was enacted to authorise the
Lord Chamberlain to prohibit any stage play whenever he thought its public
performance would militate against good manners, decorum and the preservation of
the public peace. The reason underlying all the decisions is that if the freedom of
speech was not restricted in the manner the relevant Acts did, public safety and
tranquillity in the State would be affected.
11. But in India under Article 19(2) this wide concept of “public order” is split up
under different heads. It enables the imposition of reasonable restrictions on the
exercise of the right to freedom of speech and expression in the interests of 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.
All the grounds mentioned therein can be brought under the general head “public
order” in its most comprehensive sense. But the juxtaposition of the different grounds
indicates that, though sometimes they tend to overlap, they must be ordinarily
intended to exclude each other. “Public order” is therefore something which is
demarcated from the others. In that limited sense, particularly in view of the history of
the amendment, it can be postulated that “public order” is synonymous with public
peace, safety and tranquillity.
12. The next question is what do the words “interest of public order” mean? The
learned Advocate-General contends that the phrase “in the interest of public order” is
of a wider connotation than the words “for the maintenance of public order” and,
therefore, any breach of law which may have the tendency, however remote, to disturb
the public order would be covered by the said phrase. Support is sought to be drawn
for this wide proposition from the judgment of this Court in Ramji Lal Modi v. State of
U.P.5 It is not necessary to state the facts of that case, as reliance is placed only on
the observations of Das, C.J., at p. 865, which read:
“It will be noticed that the language employed in the amended clause is ‘in the
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interests of’ and not ‘for the maintenance of’. As one of us pointed out in Debi
Saron v. State of Bihar6 the expression ‘in the interests of’ makes the ambit of the
protection very wide. A law may not have been designed to directly maintain public
order and yet may have been enacted in the interests of public order.”
The learned Chief Justice again in Virendra v. State of Punjab7 observed, at p. 317,
much to the same effect:
“As has been explained by this Court in Ramji Lal Modi v. State of U.P.5 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 interests 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 may have been enacted “in the interests of” the public
order or the general public as the case may be.”
We do not understand the observations of the Chief Justice to mean that any remote
or fanciful connection between the impugned Act and the public order would be
sufficient to sustain its validity. The learned Chief Justice was only making a
distinction between an Act which expressly and directly purported to maintain public
order and one which did not expressly state the said purpose but left it to be implied
therefrom; and between an Act that directly maintained public order and that
indirectly brought about the same result. The distinction does not ignore the necessity
for intimate connection between the Act and the public order sought to be maintained
by the Act.
13. Apart from the said phrase, another limitation in the clause, namely, that the
restrictions shall be reasonable, brings about the same result. The word “reasonable”
has been defined by this Court in more than one decision. It has been held that in
order to be reasonable, “restrictions must have reasonable relation to the object which
the legislation seeks to achieve and must not go in excess of that object”. The
restriction made “in the interests of public order” must also have reasonable relation to
the object to be achieved i.e. the public order. If the restriction has no proximate
relationship to the achievement of public order, it cannot be said that the restriction is
a reasonable restriction within the meaning of the said clause. A Full Bench decision of
the Federal Court in Rex v. Basudeva8 contains some observations which give
considerable assistance to construe the words. In that case, the appellant was
detained in pursuance of the order made by the Government of U.P. under the U.P.
Prevention of Black-Marketing (Temporary Powers) Act, 1947. The question was
whether the preventive detention provided for in Section 3(1)(i) of the said Act was
preventive detention for reasons connected with the maintenance of public order. The
argument in that case ran on the same lines as in the present case. The learned
Advocate-General there urged that habitual black-marketing in essential commodities
was bound sooner or later to cause a dislocation of the machinery of controlled
distribution which, in turn, might lead to breaches of the peace and that, therefore,
detention with a view to prevent such black-marketing was covered by the entry.
Answering that argument, Patanjali Sastri, J. as he then was, pointed out, at p. 69:
“Activities such as these are so remote in the chain of relation to the
maintenance of public order that preventive detention on account of them cannot,
in our opinion, fall within the purview of Entry I of List II. … The connection
contemplated must, in our view, be real and proximate, not far-fetched or
problematical.”
The decision, in our view, lays down the correct test. The limitation imposed in the
interests of public order to be a reasonable restriction, should be one which has a
proximate connection or nexus with public order, but not one far-fetched, hypothetical
or problematical or too remote in the chain of its relation with the public order.
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14. We shall now test the impugned section, having regard to the aforesaid
principles. Have the acts prohibited under Section 3 any proximate connection with
public safety or tranquillity? We have already analysed the provisions of Section 3 of
the Act. In an attempt to indicate its wide sweep, we pointed out that any instigation
by word or visible representation not to pay or defer payment of any exaction or even
contractual dues to Government, authority or a landowner is made an offence. Even
innocuous speeches are prohibited by threat of punishment. There is no proximate or
even foreseeable connection between such instigation and the public order sought to
be protected under this section. We cannot accept the argument of the learned
Advocate-General that instigation of a single individual not to pay tax or dues is a
spark which may in the long run ignite a revolutionary movement destroying public
order. We can only say that fundamental rights cannot be controlled on such
hypothetical and imaginary considerations. It is said that in a democratic set up there
is no scope for agitational approach and that if a law is bad the only course is to get it
modified by democratic process and that any instigation to break the law is in itself a
disturbance of the public order. If this argument without obvious limitations be
accepted, it would destroy the right to freedom of speech which is the very foundation
of democratic way of life. Unless there is a proximate connection between the
instigation and the public order, the restriction, in our view, neither reasonable nor is
it in the interest of public order. In this view, we must strike down Section 3 of the Act
as infringing the fundamental right guaranteed under Article 19(1)(a) of the
Constitution.
15. The learned Advocate-General then contended that the section is severable and
that if so severed, the section may be made to function within the limited field that
stands the test of Article 19(2) of the Constitution. He asks us to read the section as
follows:
“Whoever, by word, either spoken or written, or by signs or by visible
representations, or otherwise, instigates, expressly or by implication, any 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 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.”
By so doing he argues that instigation of a class of persons only is made liable and
thereby the section is rid of the vice of unconstitutionality.
16. The doctrine of severability vis-a-vis the fundamental rights is sought to be
supported on the basis of the wording of Article 13(1) of the Constitution. Under that
Article laws, insofar as they are inconsistent with the provisions of Part III, are void
only to the extent of such inconsistency. But this implies that consistent and
inconsistent parts of a law are severable. This doctrine in its relation to fundamental
rights was considered by this Court in three decisions. In Romesh Thapper case1 such
an argument has been repelled by this Court. Patanjali Sastri, J., as he then was,
stated the legal position thus at p. 603:
“Where a law purports to authorise the imposition of restrictions on a
fundamental right in language wide enough to cover restrictions both within and
without the limits of constitutionally permissible legislative action affecting such
right, it is not to uphold it even so far as it may be applied within the constitutional
limits, as it not severable. So long as the possibility of its being applied for
purposes not sanctioned by the Constitution cannot be ruled out, it must be held to
be wholly unconstitutional and void.”
In Chintaman Rao v. State of Madhya Pradesh9 , the same principle is again restated.
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Mahajan, J., as he then was, observed at p. 765:

“The law even to the extent that it could be said to authorize the imposition of
restrictions in regard to agricultural labour cannot be held valid because the
language employed is wide enough to cover restrictions both within and without the
limits of constitutionally permissible legislative action affecting the right. So long as
the possibility of its being applied for purposes not sanctioned by the Constitution
cannot be ruled out, it must be held to be wholly void.”
17. The wide reach of this principle appears to have been circumscribed to some
extent in a later decision of this Court in R.M.D. Chamarbaugwalla v. Union of India10 .
In that case the constitutionality of Sections 4 and 5 of the Prize Competitions Act (42
of 1955) was challenged on the ground that “prize competition” as defined in Section
2(d) of the Act included not merely competitions that were of a gambling nature but
also those in which success depended to a substantial degree on skill. This Court,
having regard to the history of the legislation, the declared object thereof and the
wording of the statute, came to the conclusion that the competitions which were
sought to be controlled and regulated by the Act were only those competitions in
which success did not depend to any substantial degree on skill. That conclusion was
sufficient to reject the contention raised in that case; but even on the assumption that
‘prize competition’ as defined in Section 2(d) of the Act included those in which
success depended to a substantial degree on skill as well as those in which it did not
so depend, this Court elaborately considered the doctrine of severability and laid down
as many as seven rules of construction. On the application of the said rules, it was
held that the impugned provisions were severable in their application to competitions
in which success did not depend to any substantial degree on skill.
18. The foregoing discussion yields the following results: (1) “Public order” is
synonymous with public safety and tranquillity: it is the absence of disorder involving
breaches of local significance in contradistinction to national upheavals, such as
revolution, civil strife, war, affecting the security of the State; (2) there must be
proximate and reasonable nexus between the speech and the public order; (3) Section
3, as it now stands, does not establish in most of the cases comprehended by it any
such nexus; (4) there is a conflict of decision on the question of severability in the
context of an offending provision the language whereof is wide enough to cover
restrictions both within and without the limits of constitutionally permissible
legislation; one view is that it cannot be split up if there is possibility of its being
applied for purposes not sanctioned by the Constitution and the other view is that
such a provision is valid if it is severable in its application to an object which is clearly
demarcated from other object or objects falling outside the limits of constitutionally
permissible legislation; and (5) the provisions of the section are so inextricably mixed
up that it is not possible to apply the doctrine of severability so as to enable us to
affirm the validity of a part of it and reject the rest.
19. It is not necessary in this case to express our preference for one or other of the
foregoing decisions. Assuming that the summary of the rules of construction given in
the last of the cases cited supra are correct and exhaustive, we are not satisfied that in
the instant case the impugned section with the omissions suggested by the learned
Advocate-General could, wholly or to any extent, be salvaged. The words of the section
with the suggested omissions continue to suffer from the same vice they are subjected
to without the said omissions. The suggested omissions from the section only exclude
individuals from the operation of the section and confine it to a class of persons and in
other respects it is not freed from the defects already pointed out by us. In R.M.D.
Chamarbaugwalla case10 the difference between two classes of competitions, namely,
those that are of gambling nature and those in which success depends on skill, is clear
-cut and has long been recognized in legislative practice. But in the present case, it is
not even possible to predicate with some kind of precision, the different categories of
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instigation falling within or without the field of constitutional prohibitions. The

constitutional validity of a section cannot be made to depend upon such an uncertain
factor. Whether the principle of the first two decisions is applied or that of the third is
invoked, the constitutional validity of the section cannot be sustained.
20. We, therefore, hold that Section 3 of the Act is void as infringing Article 19(1)
(a) of the Constitution. The entire section, therefore, must be struck down as invalid.
If so, the prosecution of the respondent under that section is void.
21. The learned Advocate-General made an impassioned appeal to persuade us to
express our view that though the present section is void on the ground that it is an
unreasonable restriction on the fundamental right, in the interests of public order, the
State could legitimately re-draft it in a way that it would conform to the provisions of
Article 19(2) of the Constitution. It is not this Court's province to express or give
advice or make general observations on situations that are not presented to it in a
particular case. It is always open to the State to make such reasonable restrictions
which are permissible under Article 19(2) of the Constitution.
22. In the result, the appeal is dismissed.
———
*Appeal from the Judgment and Order dated 27th August, 1954 of the Allahabad High Court in Criminal Misc. Writ
No. 20 of 1954
1
(1950) SCR 594, 600, 601, 602
2 (1950) SCR 605
3 (1952) SCR 654
4 (1940) 310 US 296, 308

5 (1957) SCR 860

6 AIR (1954) Pat 254
7
(1958) SCR 308
8 AIR (1950) FC 67
9 (1950) SCR 759
10 (1957) SCR 930

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