Patna High Court
The State vs Ramanand Tiwari on 4 August, 1955
Equivalent citations: AIR1956PAT188, 1955(3)BLJR612, 1956CRILJ768, AIR 1956 PATNA 188
Author: Chief Justice
Bench: Chief Justice
JUDGMENT Das, C.J.
1. This is a reference made by the learned Judicial Magistrate exercising first class powers at Monghyr, under the provisions of Section 432, Criminal P. C, The learned Magistrate posed two questions for consideration; one question is if Section 5, Bihar Essential Services Maintenance Act, 1947 (Bihar Act I of 1948), hereinafter to be referred to as the impugned Act, is unconstitutional and void on the ground that it contravenes the fundamental right of a citizen of India with regard to freedom of speech and expression, guaranteed by Article 19(1) (a) of the Constitution; the second question is whether the impugned Act is wholly void on the ground that it amounts to a delegation of the legislative power to the State Government.
The learned Magistrate has recorded his opinion that Section 5 of the impugned Act violates the fundamental right guaranteed to a citizen of India under Article 19 61 the Constitution and is not saved by Clause (2) of the said Article. The learned Magistrate has also recorded his opinion that the whole Act is invalid by reason of the delegation of legislative power. Accordingly, he has stated a case and referred it to this Court for decision.
2. We have heard learned counsel for Ramanand Tiwari, the person accused in this case of an offence under Section 5 of the impugned Act, and also the learned Advocate-General who appeared for the State of Bihar. The charge framed against Ramanand Tiwari shows that the offence alleged to have been committed by him arose out of a certain speech which Ramanand Tiwari is stated to have made at a public meeting, convened by the Socialist Party, at Lakhisarai on 22-6-1952, The charge is in these terms :
"That you on or about the 22nd day of June, 1952, at Lakhisarai, P. S. Lakhisarai, District Monghyr, intentionally or knowingly did an act, viz., delivered a speech which was likely to cause, or thereby, you attempted to cause, disaffection towards the Government established by law among the police force of the State of Bihar; and also by the same speech intending or knowing it was likely to induce the members of the said force to withhold their services or to commit breach of discipline, attempted to cause the same, and thereby, committed an offence under Section 5, Bihar Essential Services Maintenance Act, 1947, (Bihar Act I of 1948), and thereby committed an offence punishable under Section 5, Bihar Essential Services Maintenance Act, and within my cognizance, and I hereby direct that you be tried by the said Court on the said charge."
3. It is necessary to point out at the very out--set that no arguments have been heard by us on the merits of the case; that is, (1) on the question if the accused person made any speech at the alleged public meeting, and (2) if the accused person made any speech, whether it came within the mischief of Section 5 of the impugned Act. The case has been referred to us only on the two questions of law which I have set forth in the first paragraph.
The questions are entirely questions of law, and it is necessary to state, to avoid any possible misunderstanding or prejudice, that our judgment will be confined to the two questions on which the learned Magistrate has stated a case. Nothing which we have said in this judgment shall be taken as an expression of opinion on the merits of the case.
4. Section 432, Criminal P. C. lays down three conditions for a reference-to this Court; the first condition is that the case pending before the Court must involve a question as to the validity of any Act, Ordinance or Regulation, or of any provision contained in an Act, Ordinance or Regulation; the second condition is that the determination of the question of the validity of any Act, Ordinance or Regulation or of any provision contained therein, must be necessary for the disposal of the case; and the third condition is that the Court is of opinion that such Act, Ordinance or Regulation or provision is invalid or inoperative but has not been so declared by the High Court.
A preliminary question was mooted before us as to whether the three conditions stated above were fulfilled in this case and if the learned Magistrate was justified in making a reference to this Court. It was pointed out that as the learned Magistrate had not recorded his finding on the, merits of the case, namely, whether the speech, if any was made by the accused person at the time and place alleged, came within the mischief of Section 5 of the impugned Act, it could not be said that the determination of the validity of the impugned Act or of any provision contained therein was necessary for the disposal of the case.
There is, I think, some force in this preliminary objection. It seems, however, that the learned Magistrate took the view that if the impugned Act or Section 5 of the impugned Act was invalid, then the case against the accused person could be disposed of on that ground only without considering the merits of the case. The learned Magistrate appears to have acted on this view in making a reference to this Court.
We propose, therefore, to answer the questions referred to us by the learned Magistrate without saying anything about the merits of the case, leaving it to the learned Magistrate to decide the case on merits after we have answered the questions of law referred to us by the learned Magistrate.
5. The second question posed by the learned Magistrate, namely that the impugned Act is wholly void by reason of delegated legislation can be disposed of in a few words. Even learned counsel for the accused person has conceded that he is not in a position to support this ground for the invalidity of the impugned Act. The impugned Act is entitled, "An Act to make provision for the maintenance of certain essential services."
The preamble makes the same statement and says :
"Whereas it is expedient to make provision for the maintenance of certain essential services."
Section 1 of the impugned Act states the short title and lays down the extent and commencement of the Act. Section 2 states that unless there is anything repugnant in the subject or context, "employment" includes employment of any nature and whether paid or unpaid. Section 3 of the Act is important on the point of delegated legislation, because the learned Magistrate has based his opinion with regard to the point of delegated legislation on Section 3 only. Section 3 is in these terms :
"This Act shall apply to any employment or class of employment under the State Government which the State Government being of opinion that such employment or class of employment is essential for securing the public safety, the maintenance of public order, or for maintaining services necessary to the life of the community may, by notification, declare to be an employment or class of employment to which this Act applies."
The learned Magistrate is of the opinion that the section gives an unfettered discretion to the State Government to declare any employment or class of employment as an essential service and apply the Act thereto; this, in the opinion of the learned Magistrate, amounts to abdication by the legislature of its legislative function in favour of the State Government.
The learned Magistrate has referred in this connection to the decision of the Federal Court in -- 'Jatindra Nath Gupta v. Province of Bihar', 1949 FC 175 (AIR V 36) (A). The learned Magistrate has not noticed the later decision of the Supreme Court of India in -- 'In re Article 143, Constitution of India and Delhi Laws Act (1912) etc.', 1951 SC 332 (AIR V 38) (B). The question of delegated legislation was considered at great length in that decision and it was observed that though the Legislature cannot abdicate its essential legislative functions, it can pass what is called conditional legislation. His Lordship, Mukherjea J. explained the position in the following observations :
"Broadly speaking, the question of delegated legislation has come up for consideration before Courts of law in two distinct classes of cases. One of these classes comprises what is known as cases of 'conditional legislation' where according to the generally accepted view, the element of delegation that is present relates not to any legislative function at all, but to the determination of a contingency or event upon the happening of which the legislative provisions are made to operate.
The other class comprises cases of delegation where admittedly some portion of the legislative power has been conferred by the legislative body upon what is described as a subordinate agent or authority. I will take up for consideration these two types of_cases one after the other. In a conditional legislation, the law is full and complete when it leaves the legislative chamber, but the operation of the law is made dependent upon the fulfilment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled.'' His Lordship quoted with approval the observations made in the -- 'Pennsylvania case', (Locke's Appeal, (1873) 72 Pa 491 (C)):
"The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some, fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power and must, therefore, be a subject of inquiry and determination outside the halls of legislation."
His Lordship concluded as follows :
"The decisions referred to above clearly lay down that the legislature cannot part with its essential legislative function which consists in declaring its policy and making it a binding rule of conduct. A surrender of this essential function would amount to abdication of legislative powers in the eye of law. The policy may be particularised in as few or as many words as the legislature thinks proper and it is enough if an intelligent guidance is given to the subordinate authority.
The Court can interfere if no policy is discernible at all or the delegation is of such an indefinite character as to amount to abdication, but as the discretion vests with the legislature in determining whether there is necessity for delegation or not, the exercise of such discretion is not to be disturbed by the Court except in clear cases of abuse. These I consider to be the fundamental principles and in respect to the powers of the legislature the constitutional position in India approximates more to the American than to the English pattern, There is a basic difference between the Indian and the British Parliament in this respect. There is no constitutional limitation to restrain the British Parliament from assigning its powers where it will, but the Indian Parliament qua legislative body is fettered by a written constitution and it does not possess the sovereign powers of the British Parliament.
The limits of the powers of delegation in India would therefore have to be ascertained as a matter of construction from the provisions of the Constitution itself and as I have said the right of delegation may be implied in the exercise of legislative power only to the extent that it is necessary to make the exercise of the power effective and, complete."
Judged by the basic principles laid down by the majority of their Lordships of the Supreme Court, it is manifest that Section 3 of the impugned Act does not amount to an abdication or surrender of its power of legislation by the State Legislature.
On the contrary, Section 3 clearly lays down the policy, and an intelligent guidance is given to the State Government; It states that the State Government can only apply the Act to such employment or class of employment which the State Government considers to be essential for securing the public safety, the maintenance of public order, or for maintaining services necessary to the life of the community.
Thus, three conditions are laid down for the application of the impugned Act to any employment or class of employment; the conditions are (1) that the employment or class of employment is essential for securing the public safety; or (2) that it is essential for the maintenance of public order; or (3) that it is essential for maintaining services necessary to the life of the community.
It is not an unfettered or unlimited discretion to the State Government to do whatever it likes to do. The Legislature declares the policy and lays down the conditions for the application of the Act to any employment or class of employment; but it gives the State Government a discretion to determine whether any of the conditions is fulfilled in respect of the particular employment or class of employment. The vesting of such a discretion is inevitable in a complex modern society, and as his Lordship Fazl Ali J. said in 1951 SO 332 (AIR V 38) at p. 361 (B) :
"This form of legislation has become a present-day necessity, and it has come to stay -- it is both inevitable and indispensable. The Legislature has now to make so many laws that it has no time to devote to all the legislative details, and sometimes the subject on which it has to legislate is of such a technical nature that all it can do is to state the broad principles and leave the details to be worked out by those who are more familiar with the subject.
Again, when complex schemes of reform are to be the subject of legislation, it is difficult to bring out a self-contained and complete Act straightway, since it is not possible to foresee all the contingencies and envisage all the local requirements for which provision is to be made. Thus, some degree of flexibility becomes necessary, so as to permit constant adaptation to unknown future conditions without the necessity of having to amend the law again and again."
6. For the reasons given above, I hold that Section 3 does not render the impugned Act wholly void on the ground of delegated legislation, and the learned Magistrate was wrong in his view on the second question mooted by him.
7. I proceed now to a consideration of the first question, Learned counsel for the accused person has very strongly contended before us that Section 5 of the impugned Act violates the fundamental right of a citizen of India guaranteed under Clause 1.
of Article 19 of the Constitution and is not saved by Clause (2) of the said Article.
I am reading Article 19 of the Constitution so far as it is relevant for our purpose. Sub-clause (a) of Clause (1) of Article 19 of the Constitution guarantees to all citizens the right to freedom of speech and expression. Clause (2) of Article 19 of the Constitution, as amended by the Constitution of India (First Amendment) Act, 1951, is in these terms ;
"Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far 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."
8. The impugned Act received the assent of the Governor General on 7-1-1948; that is, before the coming into force of the Constitution of India. The Constitution of India (First Amendment) Act, 1951, states that Clause (2) as substituted by the Amendment Act shall be deemed always to have been enacted in the form which the Amendment Act gives to it.
In other words, Clause (2) of Art 19 shall be deemed always to have been in the form which has been quoted above. It has not been seriously disputed before us that the validity of Section 5 of the impugned Act must be considered in the light of Clause (2) of Article 19 as it stands after the amendment of 1951.
9. I shall now read Section 5 of the impugned Act. It is in these terms:
"Whoever intentionally causes or attempts to cause or does any act which he knows is likely to cause, disaffection towards the Government established by law amongst the persons, engaged in any employment or class of employment to which this Act applies, or induces or attempts to induce, or does any act which he knows is likely to induce, any person engaged in such employment or class of employment to withhold his services or to commit a breach of discipline shall, notwithstanding anything contained in any other law or anything having the force of law, be punishable with imprisonment which may extend to three years and shall also be liable to fine".
The argument before us is that Section 5 of the impugned Act is not saved by Clause (2) of Article 19, because (a) it imposes unreasonable restrictions' on the exercise of the right of freedom of speech and expression, and (b) the restrictions imposed are not in the interests of public order, etc. It is argued that Section 5 of the impugned Act is couched in such wide terms that it goes much beyond what is necessary in the interests of public order.
Mr. Avadesh Nandan Sahay has contended that when the words used are such that the contemplated and authorised use of the section may be outside the limits of constitutionally permissible restrictions then the principle laid down in -- 'Romesh Thappar v. State of Madras' 1950 SC 124 (AIR V. 37) (D), will apply, and the impugned Act should be condemned on the ground that the resfrictions are unreasonable and go beyond what is necessary in the interests of public order. The main basis of this argument of learned counsel for the accused person is the use of wide words in Section 5. Section 5 consists of several parts; in the first part, it states "whoever intentionally causes or attempts to cause, or does any act which he knows is likely to cause, disaffection towards the Government established by law amongst the persons engaged in any employment or class of employment to which this Act applies";
the second part states that whoever "induces or attempts to induce, or does any act which he knows is likely to induce, any person engaged in such employment or class of employment to withhold his services";
and the third part states that whoever induces or attempts to induce, or does any act which he knows is likely to induce, any person engaged in such employment or class of employment" to commit a breach of discipline" and then the last part of the section says that whoever doss any of the three acts mentioned above shall be punished in a particular manner, notwithstanding anything contained in any other law or anything having the force of law, etc. It will thus appear that the first three parts of the section state what constitutes the offence, and the concluding part relates to the penalty. The question before us is whether any of the three parts of the section which states what constitutes the offence is an unreasonable restriction on the guaranteed right of freedom of speech-and expression or is a restriction which is not in the interests of public order.
10. In my opinion, the restrictions imposed by Section 5 of the impugned Act- on the right off freedom, of speech and expression are reasonable restrictions on the exercise of the right in the) interests of public order and Clause (2) of Article 19 of the Constitution saves Section 5. My reasons for this view are the following. I take up first the question whether the restrictions imposed are in the interests of public order.
The expression "causing disaffection towards the Government established by law" is a well known expression which occurs in Section 124-A Penal Code. There are three explanations attached to Section 124A, Penal Code. The first explanation states that the expression " disaffection" includes disloyalty and all feelings of enmity.
The second explanation states that comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection,, do not constitute an offence under Section 124A. The third explanation states that comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under Section 124A.
Mr. Avadesh Nandan Sahay has argued before us that there are no explanations to Section 5 of the impugned Act, and the explanations to Section 124A, Penal Code cannot be imported into Section 5. If those explanations are not imported into Section 5, Mr. Avadesh Nandan Sahai argues that the words "intentionally causes or attempts to cause or does any act which he knows is likely to cause, disaffection towards the Government established by law" have such a wide connotation that they will embrace any and every comment made against Government. He has pointed out that in a democratic country the opposition can never function, if any and every comment made against Government is to be treated as an offence.
The argument of Mr. Avadesh Nandan Sahai is that Section 5 penalises any and every comment made against Government by reason of the wide words used in the section, and, therefore, the section is firstly, an unreasonable restriction, and, secondly, it goes much beyond the constitutionally permissible limits of restrictions in the interests of public order.
In my opinion, though explanations similar to the explanations to Section 124A, Penal Code, are not to be found in Section 5 of the impugned Act, that section by reason of the use of an expression with a well-understood connotation and subject to certain explanations, must be held to be subject to similar explanations. There is high authority for this view.
In -- 'Niharendu Dutt Majumdar v. Emperor', 1942 FC 22 (AIR V 29) (E), their Lordships were dealing with a case of a "prejudicial act" as defined under the Defence of India Rules. One of the clauses of the relevant rule said that "prejudicial acts" were "acts which are intended or are likely to bring into hatred or contempt or cause disaffection towards His Majesty, etc." His Lordship Gwyer C. J., observed :
"It will be observed that the first of these acts is described in precisely the same language as it used to describe the offence of sedition in Section 124A, Penal Code. We were invited to say that an offence described merely as a "prejudicial act" in the Defence of India Rules ought to be regarded differently from an offence described as "sedition" in the Code, even though the language describing the two things is the same. We cannot accept this argument.
We do not think that the omission in the rules of the three "Explanations" appended to the section of the Code affects the matter. These are added to remove any doubt as to the true meaning of the Legislature; they do not add to or subtract from the section itself; and the words used in the rules ought to be interpreted as if they had been explained in the same way."
The decision of the Federal Court in '1942 PC 22 [AIR V 29] (E)', was considered by the Privy Council and was not approved on another point, but on the point now under consideration the Privy Council approved of the view of the Federal Court. (See -- 'Emperor v. Sadashiv Narayan', 1947 PC 82 [AIR V 34] (P).) The Privy Council observed :
"Their Lordships agree, for the purposes of the present appeal, that there is no material distinction between Rule 34(6), sub-para (e) and Section 124A, Penal Code, though it might be suggested that the words 'an act which is intended or likely to bring' in the rule are wider than the words 'brings or attempts to bring' in the Code. They further agree with the learned Chief Justice that the omission in the rule of the three explanations in the Code should not lead to any difference in construction."
On these authorities I would hold that the omission in Section 5 of the impugned Act of the three explanations to Section 124A, Penal Code should not lead to any difference in construction of the use of the same expression "causing disaffection towards the Government established by law".
If, therefore, we read the expression subject to these explanations, I do not think that the expression can be said to be so wide as to be an unreasonable restriction or to go beyond the constitutionally permissible limits of restrictions as laid down in Clause (2) of Article 19 of the Constitution.
A Division Bench of this Court considered the same question in -- 'Debi Soren v. State', 1954 Pat 254 [AIR V 41] (G), in connection with P. 124A, Penal Code. The leading judgment was given by me, to which Rai J., agreed. I pointed out, there that there were two views with regard to Section 124A, Penal Code. One view was that expressed by Gwyer C. J., in '1942 FC 22 [AIR V 29] (E), where Gwyer C. J., said :
"Public disorder, or reasonable anticipation or the likelihood of public disorder, is thus the gist of the offence. The acts or words complained must either incite to disorder or must be such as to satisfy reasonable men that that is their intention or tendency."
In the case of '1947 PC 82 [AIR V 34] (F)', their Lordships of the Privy Council did not accept the interpretation of Gwyer C. J. Their Lordships of the Privy Council reaffirmed the view taken in -- 'Queen Empress v. Bal Gangadhar Tilak', 22 Bom 112 (H). In '1954 Pat 254 [AIR V 41] (G)', I said that even accepting the view of their Lordships of the Privy Council with regard to Section 124A, Penal Code, the position was this :
"If the section is read as a whole together with the explanations, it seems clear that the mischief which it contemplates has a reference to public order in widest sense, even though the section does not make it necessary that there should be direct incitement to violence or disorder. My view is that even accepting the interpretation put upon the section by their Lordships of the Privy Council, the restrictions it imposes on freedom of speech and expression are reasonable restrictions in the interest of public order.
It is worthy of note that the expression used in Clause (2)' of Article 19 is 'in the interests of public order' and not 'public order' simpliciter. The expression 'in the interests of public order' has a wide connotation and should not be confined to only one aspect of public order, viz., incitement to violence or tendency of violence, public order can be affected in other ways also; and creating disaffection, hatred or contempt' towards the Government established by law (not merely comments which express disapprobation of Governmental measure or administrative and other action of Government) may seriously affect the interests of public order, even though there may be no tendency or incitement to violence.
Incitement to violence no doubt directly affects the maintenance of public order; but the expression 'in the interests of public order' is not confined merely to such incitement. It has a much, wider content, and embraces such action as under-, mines the authority of Government by bringing it into hatred or contempt or by creating disaffection towards it; one must, however, always keep in view the distinction which the section itself makes between disaffection and mere disapprobation of Governmental measures or action. From this point of view, Clause (2) of Article 19, as it now stands, saves the provisions of Section 124A, Penal Code."
Learned Counsel for the accused persons has very seriously contended before us that the view expressed by me in 'Debi Soren's case (G)', is not correct and requires reconsiderations. I have again reconsidered the matter in the light of the arguments advanced by learned counsel for the accused person.
On such reconsideration, I am again of the view that even on the interpretation given by the Privy Council with regard to the expression "causing disaffection towards the Government established by law," Section 5 of the impugned Act does not impose an unreasonable restriction on the right of freedom of speech or expression; nor does it impose a restriction which is not in the interest of public order.
My considered view is that the restriction is reasonable restriction in the interest of public order. In my opinion, it cannot be said that causing disaffection towards the Government established by law amongst the persons engaged in any employment or class of employment which is essential for securing the public safety the maintenance of public order or for maintaining services necessary to the life of the community has no reference to public order.
With great respect, I do not agree that the expression 'public order' should be given "a very narrow construction, such as was given by Agarwala J., in -- 'Dr. Ram Manohar Lohia v. Supdt. Central Prison, Fatehgarh', 1955 All 193 [AIR V 42] (1). His Lordship observed at page 219 of the report :
"The use of the expression 'public order' in legislative enactments and by learned writers on the subject, clearly shows that the expression is used in connection with a 'state of peace and tranquillity' and that a law 'in the interests of public order has reference to a violent disturbance of public peace and tranquillity."
I have already said in '1954 Pat 254 [AIR V 41] (G)', that 'public order can be affected in ways other than incitement to violence or tendency of violence. To that view I again adhere.
11. So far I have dealt with the first part of Section 5 which relates to causing disaffection towards the Government established by law. The other two parts which relate to withholding of services and committing a breach of discipline are also, in my opinion, reasonable restrictions in the interests of public order. If the members of an essential service withhold their services or if they are induced or encouraged to commit breaches of discipline, it is obvious that such action will paralyse Government and will affect the maintenance of public order or the maintaining of services necessary to the life of the community.
Section 5 should, I think, be read with Section 3, so that one may understand its true meaning. It has been argued before us that if one man in service withholds his services or commits a breach of discipline, it will have no appreciable effect on the maintenance of public order or maintaining services necessary to the life of the community. It is pointed out that many officers are absent from duty on account of illness, etc., and obviously such absence does not affect the maintenance of public order or maintaining services necessary to the life of the community.
The argument proceeds to state that inasmuch as Section 5 penalises such an individual act of withholding services or committing a breach of discipline, it goes beyond the constitutionally permissible limits of Clause (2) of Article 19. In my opinion, this argument is also not correct. Whether an individual act does or does not have the undesirable effect of effecting public order will depend on circumstances. For example, if the Inspector General of Police withholds his services or commits a breach of discipline, it may affect the whole police service.
Even an individual act of withholding services or committing a breach of discipline by an ordinary constable may have repercussion on others. It is not for the Court to decide on the wisdom of legislation of this kind or on the requirements of a particular case which the Legislature has in mind. I do not think that the so-called distinction between an individual act and a collective act of withholding services or committing breaches of discipline can be invoked to strike down Section 5 of the impugned Act.
12. Some argument was advanced before us with regard to the expression "notwithstanding anything contained in any other law or anything having the force of law", occurring in the concluding part of Section 5. In my opinion, that expression does not enlarge the meaning and construction of the first three parts of the section.
The expression has reference only to the punishment part of the section and was necessary by reason of the circumstance that another Act known as the Police (Incitement to Disaffection) Act, 1922, also penalised similar acts committed by the members of the police force.
It has been stated before us that the only service to which the impugned Act has been applied is the police service and as there were two Acts penalising more or less the same offences, the punishing part of Section 5 of the impugned Act contained the non-obstante clause, "Notwithstanding anything contained in any other law or anything having the force of law." That expression does not in any way enlarge the meaning and construction of the three parts of the section which state the essential ingredients of the offence.
13. It remains now to refer to certain other decisions on which learned counsel for the accused persons has relied. In -- 'Krishna Chandra v. Chief Supdt., Central Telegraph Office, Calcutta', 1955 Cal 76 [AIR V 42] (J), certain observations were made with regard to the right of free speech in a democratic country. It was observed :
"The pith and substance of the particular fundamental right under Article 19(1) (a) is that in a free democratic country every citizen should be capable of speaking out what he thinks. Such freedom of speech and expression promotes diversity of ideas and programmes so that they may reach the mind of one another, resulting in the exposure of falsehood through the process of education and discussion. It is through such channels that Government remains responsible to the will of the people and peaceful change is effected."
In my opinion, these general observations are not of any particular assistance in the present case. Their Lordships made these observations in connection with certain rules regulating a Government servant's conduct and it was held that a particular rule constituted an unreasonable restriction on the fundamental rights guaranteed to the petitioner under Article 19 of the Constitution.
I have already pointed out that in the case before us the restrictions which Section 5 of the impugned Act impose are reasonable restrictions in the interest of public order. In 'the matter of "Saptaha" a Bengali Bi-weekly Newspaper', 1950 Cal 444 [AIR V 37] (K), his Lordship Harries C. J., observed with reference to Section 4 of the Press Act.
"The right to criticise is inherent in a democracy. The opposition are entitled, and indeed it is their duty in proper cases, to expose the misdeeds or acts or omission of the Government in power and this they are entitled to do with a view to winning over the electorate so that the Government in power will be thrown out and the opposition placed in power after securing a majority in an election."
I have already pointed out that the expression "causing dis-satisfaction" occurring in Section 5 of the impugned Act must be understood in the same sense in which the expression is used in Section 124A, Penal Code, and must be subject to the same explanations. Read with those explanations there is a well understood distinction between mere criticism or disapprobation of Governmental measures and causing disaffection to Government established by law.
It is that distinction, I think, which is the crux of the matter and which brings the impugned Act under the saving clause, namely, Clause (2) of Article 19 of the Constitution. I have already pointed out that the principle laid down by his Lordship Patanjali Sastri J., in '1950 SC 124 [AIR V 37] (D)', was further explained by his Lordship in the -- 'State of West Bengal v. Anwar All Sar-kar', 1952 SC 75 [AIR V 32] (L). His Lordship accepted the correctness of the view that the mere possibility of abuse in practice would not justify the condemnation of an Act as unconstitutional.
What is necessary to examine is the contemplated and authorised use of the law as shown by the words used therein. Judged by that standard I do not think that Section 5 of the impugned Act can be held to be unconstitutional.
The contemplated and authorised use of Section 5 is confined to causing disaffection towards Government established by law as distinguished from mere criticism or disapprobation including withholding of services and inducing the commission of breaches of discipline in a member of an essential service, a service which is essential for securing the public safety, the maintenance of public order or for maintaining services necessary to the life of the community. Read in the context of Section 3, Section 5 of the impugned Act imposes an easily intelligible and reasonable restriction in the interests of public order on the right of freedom -of speech and expression.
14. For the reasons given above, I hold that neither the impugned Act, nor Section 5 of the impugned Act, are constitutionally invalid. The reference is disposed of accordingly. We make no order as to costs.
Imam, J.
15. I agree.