Brij Bhushan and Anr. vs State of Delhi
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: supreme-court
Case Number: Not extracted
Decision Date: 2 March 1950
Coram: Meher Chand Mahajan, Saiyad Fazal Ali
The Court observed that the dispute centered on the constitutionality of section 7(1)(c) of the East Punjab Public Safety Act, 1949, as it had been extended to the Province of Delhi. That provision read: “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 shall before publication be submitted for scrutiny.”
The Court noted that sub-clause (c) did not apply in a general manner; it was limited to matters concerning a “particular subject or class of subjects.” Moreover, the Court emphasized that, in view of the surrounding language, the restriction contemplated by the clause had to be linked to concerns of public safety or the maintenance of public order.
The petitioners, who challenged the provision, were the printer (and publisher) and the editor of an English-language weekly published in Delhi under the title “ORGANIZER.” They sought a writ of certiorari and a writ of prohibition against the Chief Commissioner of Delhi. Their relief sought to have the Court examine and review the legality of, restrain the operation of, and set aside the order issued by the Chief Commissioner on 2 March 1950 under the impugned section. That order directed the “ORGANIZER” to submit, in duplicate and before any publication, all communal material and news and views concerning Pakistan, including photographs and cartoons that were not derived from official sources or news-agency supplies, for scrutiny until further notice.
The order, as recorded, stated that the Chief Commissioner was satisfied that the “ORGANIZER” had been publishing highly objectionable content that constituted a threat to public law and order, and that the measures prescribed were necessary to prevent or combat activities prejudicial to public safety or the maintenance of public order. The petitioners contended that, notwithstanding these findings, the order infringed their fundamental right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Article 19(1)(a) and (2), read together, provide: “(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 prevents the State from making any law relating to, libel, slander, defamation, contempt of Court.”
Article 19(2) of the Constitution, read together with clause (1)(a), stated that “nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law in so far as it relates to, or prevents 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.”
The petitioners argued that Section 7(1)(c) of the East Punjab Public Safety Act, the provision on which the impugned order was based, could not be justified by the saving clause of Article 19(2) because the provision did not concern any matter that undermines the security of the State or tends to overthrow it. Consequently, they contended that the provision fell outside the ambit of the constitutional exception.
Accordingly, the petitioners maintained that the principal basis of their challenge was that the impugned law infringed a fundamental right guaranteed by Article 19(1)(a) and that the so-called saving clause could not be invoked to protect the provision from being struck down.
The Court observed that there could be no doubt that any pre-censorship imposed on a newspaper, such as the order issued by the Chief Commissioner in the present case, represented a restriction on the liberty of the press. This liberty formed part of the freedom of speech and expression protected by Article 19(1)(a). Therefore, the only question before the Court was whether the limitation prescribed by Article 19(2) barred the petitioners’ challenge.
The East Punjab Public Safety Act, 1949, of which Section 7 formed a part, had been enacted by the Provincial Legislature exercising the authority conferred by Section 100 of the Government of India Act, 1935, together with entry No. 1 of List II of the Seventh Schedule to that Act. Entry No. 1 comprised the term “public order” among other matters. In its general sense, “public order” referred to the maintenance of law and order within the province, a meaning reinforced by the explanatory words placed in brackets after the term, which excluded the use of naval, military, air forces or any other Union armed forces in aid of civil power. The Court noted that anything affecting public tranquillity within the state or province would also affect public order, and consequently the State Legislature possessed the competence to enact laws relating to both public tranquility and public order. It was undisputed that, under the Government of India Act, 1935, each province bore the responsibility for dealing with all internal disturbances, irrespective of their magnitude, and for preserving public tranquillity and order within its territory.
At this point, the Court found it appropriate to examine the meaning of the term “public safety,” which appeared throughout the impugned Act and was selected by its framers for the title of the legislation. Although the phrase had been employed in varied contexts, such as in Chapter XIV of the Indian Penal Code, the Court held that, through extensive legislative practice, “public safety” had acquired a well-recognised meaning in statutes like the one under consideration. The term was understood to denote the safety or security of the State itself.
The expression “public safety” had previously been employed in the Defence of the Realm (Consolidation) Act, 1914, as well as in the Defence of India Act. Its meaning was later clarified by the judicial decision in Rex v. Government of Wormwood Scrubbs Prison (1). The head-note of that case read that section 1 of the Defence of the Realm (Consolidation) Act, 1914, gave His Majesty in Council, during the war, the authority “to issue regulations … for securing the public safety and the defence of the realm.” The Court held that the regulations authorized by that provision were not confined to measures against foreign enemies, but also encompassed regulations intended to prevent internal disorder and rebellion.
Consequently, the terms “public order” and “public safety” were understood to be closely related concepts within the legislative scheme. To clarify their relationship, the Court suggested comparing them with the opposite notions, which it labelled for convenience as “public disorder” and “public unsafety.” The Court explained that “public safety,” as previously described, corresponded to the security of the State, whereas “public unsafety” could be regarded as the insecurity of the State. Under this framework, “public disorder” covered minor disturbances such as a small riot or an affray that affected a limited group of persons. By contrast, “public unsafety” usually accompanied serious internal disorders that threatened the State’s security and disturbed public tranquillity on a larger scale. In the East Punjab Public Safety Act, the phrase “maintenance of public order” always appeared alongside “public safety,” and the title of the statute itself emphasised “public safety.” This prominence indicated that the Act was designed primarily to address serious cases of public disorder that endangered public safety or the security of the State. The Act also contemplated situations in which an emergency or grave circumstance might cause even relatively small public disturbances to have far-reaching effects on State security. The statute expressly provided for “special measure to ensure public safety and maintenance of public order,” and the term “special measures” signalled that the legislation was not intended for ordinary incidents. Ordinary offences were already covered by the Indian Penal Code and other existing statutes, whereas the temporary Act sought to furnish extraordinary powers for extraordinary situations. Recognizing this purpose, the Court remarked that much of the confusion raised during the arguments would disappear once the Act was viewed in its proper perspective as a piece of special legislation.
The petitioners contended that the Act had been enacted under the authority conferred by the expression “public order” in the Government of India Act, a phrase of broad import, and that because the Act purported to provide for the maintenance of public order, its provisions were intended to be applicable to every breach of public order, whether minor or grave. The Court considered this line of argument to be misguided. It observed that the legislation was a special statute designed to furnish special measures, and that its dominant purpose was the preservation of public safety and the maintenance of public order in situations that required such special measures. Consequently, the Act could not be treated as a general law applicable to ordinary, routine disturbances.
The petitioners further argued that the terms “public safety” and “maintenance of public order” were used in the Act in a disjunctive manner, separated by the word “or” rather than “and”, and therefore the Act might be capable of covering both ordinary and serious disturbances of public order and tranquillity. The Court rejected this narrow and technical construction, asserting that interpretation must be guided by the Act’s overall aim and purpose. It emphasized that the preservation of public safety was the prevailing intent of the legislation and that, being a special Act, it should not be conflated with a statute that governs every trivial breach of public order. The Court explained that the word “or” did not signify two wholly distinct concepts but rather indicated that the two closely related concepts could be employed almost interchangeably in the context. Accordingly, “public order” could be paraphrased as “public tranquillity”, while the expressions “public safety” and “public order” could be read as equivalent to “security of the State” and “public tranquillity” respectively.
Turning to clause (2) of Article 19, the Court reflected on the purpose of inserting the phrase “matter which undermines the security of, or tends to overthrow, the State.” It noted that, in all legal systems, the right to freedom of speech and press permits a person to speak or write freely, subject only to restrictions relating to libel, slander, blasphemous, obscene, or seditious material, as explained in Halsbury’s Laws of England, 2nd Edition, Vol. II, p. 391. The Court observed that this principle is essentially embodied in clause (2) of Article 19, differing only in wording from the traditional description of the limits on speech.
The Court observed that the Constitution originally used the expression “law relating to sedition.” The framers later omitted the word “sedition” from the draft and inserted the wording that is now quoted in Article 19(2). The Court found it not difficult to discern the purpose of this amendment and proceeded to explain the reason in its own terms.
The most recent authority of the highest Indian tribunal on the law of sedition was identified as the decision in Niharendu Dutt Majumdar v. The King (2). In that case Chief Justice Gwyer held that the essence of the offence of sedition is public disorder, or the reasonable anticipation or likelihood of public disorder, and that the acts or words complained of must either incite disorder or be such that reasonable persons would conclude that the intention or tendency is to cause disorder. Chief Justice Gwyer based this view in part on observations of Justice Fitzgerald in R. v. Sullivan (3) and added that he was prepared to adopt “the words of that learned Judge which are to be found in every book dealing with this branch of the criminal law.” The Court noted that Gwyer’s statement reflects the opinion of several judges and legal authors and corresponds with the view of Sir James Stephen. In support of this, Justice Cave, addressing a jury in R. v. Burns (4), explained that the law on what is seditious is set out clearly in a book by Stephen, J., who possessed superior knowledge of criminal law, and that Stephen’s exposition had been submitted to other judges involved in drafting a criminal code. Those judges reported that Stephen’s statement accurately represented the law as it stood at that time.
The Court further recorded that the principle laid down by Chief Justice Gwyer remained authoritative for many years until the Privy Council, hearing a matter under the defence of India Rules, expressed a contrary view in King-Emperor v. Sadhasiv Narayan Bhalerao (5). The Privy Council held that Gwyer’s test was not applicable in India because the offence under section 124A of the Indian Penal Code must be interpreted according to the language of that section itself. The Council added that the word “sedition” does not appear in section 124A or in the Rule; it is found only as a marginal note to section 124A and therefore is not an operative part of the provision but merely a label for the crime defined therein. There
There could be no justification for limiting the scope of section 124A by referring to the marginal note that labels it “sedition.” In England, no statute defines sedition; instead, its meaning has been shaped by numerous judicial decisions, some of which were cited by the Chief Justice. However, the Court observed that such decisions are irrelevant when a statute already provides a definition of the offence, as is the case in the present matter. The judges further noted that the wording of either section 124A or the relevant Rule did not contain any requirement that the alleged acts or words must incite disorder or must convince a reasonable person of an intention or tendency to do so.
The Court then turned to the constitutional context, explaining that the framers of the Constitution must have confronted a dilemma regarding the use of the term “sedition” in Article 19(2). On one side, they were likely aware of the widely accepted view, supported by many authorities, that sedition is fundamentally an offence against public tranquillity and is linked in some manner to public disorder. On the other side, they were confronted with the Judicial Committee’s pronouncement that the definition of sedition in the Indian Penal Code does not necessarily imply an intention or tendency to incite disorder. In light of these competing considerations, the Court found it unsurprising that the drafters chose not to employ the word “sedition” in clause (2), opting instead for broader language that would encompass sedition and any other conduct that makes the offence serious. The Court affirmed that sedition undoubtedly undermines the security of the State, and that it usually does so through the medium of public disorder, a view shared by eminent judges and jurists. Consequently, the Court held that it would be difficult to assert that public disorder or the disturbance of public tranquillity are not matters that threaten the security of the State.
To illustrate the nature of offences against public tranquillity, the Court quoted from Stephen’s Criminal Law of England (Vol. II, pp. 242-243): “It often happens, however, that the public peace is disturbed by offences 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…”
The passage observes that such offenses cannot be demarcated by perfectly definite boundaries. It points out that each of the offenses shares a single characteristic: the normal tranquillity of a civilized society is disturbed either by the actual use of force or at least by the display or threat of force. A second category of offenses against public tranquillity consists of those in which no actual force is employed or displayed, but steps are taken that are intended to cause force. Examples of this second category include the formation of secret societies, seditious conspiracies, libels, or spoken words. The author indicates that under these two headings all offenses against the internal public tranquillity of the State may be classified.
The Court notes that the quoted passage brings out two matters with remarkable clarity. First, it shows that sedition is essentially an offence against public tranquillity. Second, it explains that, in broad terms, offences against public tranquillity fall into two classes. The first class comprises offences accompanied by violence, including disorders that affect the tranquillity of a considerable number of persons or an extensive local area. The second class comprises offences not accompanied by violence but tending to cause it, such as seditious utterances, seditious conspiracies, and similar acts.
Both of these classes of offences, the Court observes, have the potential to undermine the security of the State or to tend to overthrow it if they are left unchecked. The Court further observes that a substantial body of authoritative opinion holds that the seriousness attributed to sedition arises from the fact that it tends to seriously affect the tranquillity and security of the State. In principle, therefore, it would not have been logical to refer to sedition alone in clause (2) of Article 19 and to omit other matters that are no less grave and that possess an equal potential to undermine the security of the State. The Court points out that the framers of the Constitution appear to have adopted a logical approach by using broader and more basic language that is capable of covering sedition as well as other matters that are equally detrimental to the security of the State.
If the Act is to be understood in the manner suggested by the Court, it becomes difficult to hold that section 7(1)(c) falls outside the ambit of Article 19(2). That clause, the Court explains, 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. The Court has shown that public disorders and disturbances of public tranquillity do indeed undermine the security of the State, and that a law aimed at preventing such disorders therefore satisfies the constitutional requirement embodied in Article 19(2). It is also 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.”
The Court finds that section …
The impugned Act contains a provision, specifically clause twenty, which authorises the Provincial Government to issue a notification declaring that the whole of the province or any part thereof, as identified in the notification, is a “dangerously disturbed area.” This clause is relevant to the purpose and object of the Act, and it cannot be ignored when the scope of the legislation is examined. It is noteworthy that, according to information presented before the Court, the Delhi Province has been placed under such a notification, thereby being classified as a “dangerously disturbed area.”
Freedom of speech and expression is among the most cherished rights guaranteed to every citizen by the Constitution, and the judiciary is required to guard this right with great vigilance. Equally important is the recognition that unfettered political discussion is essential for the effective operation of a democratic government. Contemporary jurists generally oppose censorship, although they all agree that “liberty of the press” should not be conflated with “licentiousness.” Nevertheless, the Constitution itself places certain limits on the exercise of this freedom, and the Court’s function is to determine, in each case, whether the impugned action falls within those constitutional boundaries. In the Court’s view, the legislation that is challenged is wholly saved by Article 19(2) of the Constitution; consequently, if the statute cannot be successfully attacked on constitutional grounds, the relief sought by the petitioners cannot be granted.
The order that is the subject of the petition states that the weekly newspaper ‘ORGANIZER’ has been publishing material that is highly objectionable and that constitutes a threat to public law and order. The order further declares that any action contemplated against the petitioners is necessary to prevent or combat activities that are prejudicial to public safety or to the maintenance of public order. These assertions are corroborated by an affidavit sworn by the Home Secretary to the Chief Commissioner. The affidavit also indicates that the order was issued after consultation with the Central Press Advisory Committee, an independent body elected by the All India Newspaper Editors’ Conference and comprising representatives of leading newspapers such as ‘The Hindustan Times’ and ‘Statesman.’ In the Court’s opinion, there can be no doubt that the Chief Commissioner acted within the authority conferred upon him by the statute, and the Court lacks the jurisdiction to grant the remedies claimed by the petitioners.
Accordingly, the Court dismissed the petitioners’ application. The petition was filed under Article 32 of the Constitution, seeking a writ of certiorari and prohibition against the Chief Commissioner of Delhi. The petitioners asked that the order concerning the English-language weekly ‘ORGANIZER’, for which the first applicant is the printer and publisher and the second applicant is the editor, be examined and set aside.
On 2 March 1950 the Respondent, exercising the authority granted to him by section 7(1)(c) of the East Punjab Public Safety Act, 1949, which had been extended to the Delhi Province and was thereafter referred to as the impugned Act, issued an order directing the printer and publisher and the editor of the newspaper ORGANIZER to submit certain material for prior scrutiny before publication.
The order began by stating that the Chief Commissioner of Delhi was satisfied that ORGANIZER, an English-language weekly published in Delhi, was printing matters that were highly objectionable and that posed a threat to public law and order; consequently, the Commissioner deemed it necessary to take action to prevent or combat activities prejudicial to public safety and the maintenance of public order.
Accordingly, the Commissioner, Shanker Prasad, acting under the powers conferred by section 7(1)(c) of the Act, required Shri Brij Bhushan, who acted as printer and publisher, and Shri K. R. Halkani, who acted as editor, to forward in duplicate, for examination, all communal material, news and opinions concerning Pakistan, including photographs and cartoons that did not originate from official sources or from recognized news agencies such as the Press Trust of India, United Press of India, or United Press of America. He instructed that these submissions be made to the Provincial Press Officer, or, in that officer’s absence, to the Superintendent of the Press Branch at his office located at 5 Alipur Road, Civil Lines, Delhi, between the hours of 10 a.m. and 5 p.m. on working days, and that the material remain under scrutiny until further order.
The sole question presented before the Court concerned the constitutional validity of section 7(1)(c) of the impugned Act. The preamble to the Act declared that it was enacted “to provide special measures to ensure public safety and maintenance of public order.” Section 7(1)(c), under which the order was issued, provided, in relevant part, that the Provincial Government or any authority authorized by it, if satisfied that such action was necessary to prevent or combat any activity prejudicial to public safety or the maintenance of public order, could issue a written order addressed to a printer, publisher, or editor requiring that any matter relating to a particular subject or class of subjects be submitted for scrutiny before publication.
The petitioners contended that this provision infringed their fundamental right to freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. They argued that the provision authorized a restriction on the publication of their journal that was not justified under the reasonable-restriction clause, Article 19(2), and therefore amounted to an unlawful encroachment on their constitutional liberty.
The Court observed that imposing pre-censorship on a newspaper unmistakably constituted a restriction on the liberty of the press, which forms an essential component of the freedom of speech and expression protected by Article 19(1)(a). In support of this view, the Court cited Blackstone’s Commentaries, noting that “the liberty of the press consists in laying no previous restraint upon publications, and not in freedom from” the subsequent continuation of the quotation.
It was observed that “censure for criminal matter when published. Every free man has an undoubted right to say what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press.” The Court then identified the sole issue for resolution as whether the provision contained in section 7(1)(c) of the Delhi Gazetteer (Emergency) Rules, which empowers the authority to impose a pre-publication restriction, is covered by the permissible restrictions enumerated in clause (2) of Article 19 of the Constitution.
The Court noted that the determination of this issue required consideration of the same principles that had been examined in the earlier decision of Petition No. XVI of 1950. Because the factual and legal questions were essentially identical to those resolved in that precedent, the Court applied the reasoning and conclusions of the earlier judgment to the present case.
Consequently, for the reasons set out in the judgment of Petition No. XVI of 1950, the Court allowed the present petition. The order dated 2 March 1950, issued by the Chief Commissioner of Delhi, was therefore set aside and quashed.