State of Rajasthan vs Shri G. Chawla and Dr. Pohumal

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Criminal Appeal No. 1 of 1955

Decision Date: 16 December 1958

Coram: M. Hidayatullah, S.K. Das, P.B. Gajendragadkar, K.N. Wanchoo

In this case the Court noted that the appeal was originally brought by the State of Ajmer, but after the reorganisation of the States, the State of Rajasthan substituted for the former State. The appeal was filed against the judgment and order dated 13 October 1954 of the former Judicial Commissioner’s Court at Ajmer, which had been certified as fit for appeal to this Court under Article 132 of the Constitution. The matter concerned the Ajmer (Sound Amplifiers Control) Act, 1952 (Ajmer 3 of 1953), which had been enacted by the Ajmer Legislative Assembly pursuant to Section 21 of the Government of Part C States Act, 1951 (49 of 1951). The Act had received the assent of the President on 9 March 1953 and empowered the State to make laws concerning matters listed in the State List or the Concurrent List. The respondents, Shri G. Chawla and Dr. Pohumal, had been prosecuted under Section 3 of the Act for allegedly violating the conditions of a permit granted for the use of sound amplifiers on 15 and 16 May 1954. The specific conditions alleged to have been breached were that the amplifiers must not be audible beyond thirty yards and that they must not be placed at a height exceeding six feet from the ground. The second respondent was said to have been operating the amplifiers for a gathering for which permission had been obtained. The respondents challenged the validity of the Act before the Judicial Commissioner of Ajmer, who held that the Act fell within Entry 31 of the Union List rather than Entry 6 of the State List, and therefore was ultra vires the State Legislature. The Court recorded that the citation for this decision is 1959 AIR 544, 1959 SCR Supl. (1) 904, with subsequent citations including 1960 SC 424 and 1970 SC 999. The headnote of the decision explained that, although the Act dealt with the control of sound amplifiers—a device used for broadcasting or communication—the pith and substance of the legislation was the regulation of their use in the interests of health and public tranquillity. Consequently, the Court held that the Act was substantially within the powers conferred by Entry 6, and possibly Entry 1, of the State List and did not fall within the Union List, rendering it intra vires the State Legislature. The judgment was delivered by Justice Hidayatullah, with the bench consisting of Justices M. Hidayatullah, S. K. Das, P. B. Gajendragadkar, and K. N. Wanchoo. Counsel for the appellant, identified in the record as H. J. Umrigar and T. M. Sen, presented the case, while the respondents did not appear before the Court.

In this case the Assembly had enacted the Ajmer (Sound Amplifiers Control) Act, 1952, which was recorded as Act number three of 1953 and had received the President’s assent on 9 March 1953. The respondents challenged the validity of that Act before the Judicial Commissioner, arguing that the legislation exceeded the authority granted to the State Legislature by section 21 of the Government of Part C States Act, 1951 (Act 49 of 1951) and was therefore ultra vires. The respondents, who were not present at the hearing, had been prosecuted under section 3 of the sound-amplifier Act for violating the first two conditions of a permit issued to the first respondent for the use of sound amplifiers on 15 May and 16 May 1954. The alleged violations were that the amplifiers were tuned so that their sound could be heard beyond a distance of thirty yards, contrary to condition 1, and that the amplifiers were positioned at a height exceeding six feet from the ground, contrary to condition 2. The second respondent, at the time of the alleged breach, was operating the sound amplifiers for a Sammelan for which permission had been obtained. On a reference made under section 432 of the Code of Criminal Procedure, the Judicial Commissioner examined the pith and substance of the Act and concluded that it fell within entry 31 of the Union List rather than entry 6 of the State List, which the State had claimed. He noted that under article 246(4) of the Constitution, Parliament possessed the power to legislate for any part of the territory of India that was not included in Part A or B of the First Schedule, even when the subject matter was enumerated in the State List. Section 21 of the Government of Part C States Act, 1951 provided that, subject to its own provisions, a State Legislative Assembly could make laws for the whole or any part of the State on matters enumerated in the State List or the Concurrent List, and that nothing in that provision would diminish Parliament’s constitutional power to make laws on any matter concerning a State. Accordingly, the legislative competence of the State Legislature was confined to the two lists other than the Union List. If the subject matter of a law fell substantially within an entry of the Union List, the law had to be declared unconstitutional; otherwise, if it fell within the State List or Concurrent List, there was no presumption of repugnancy to a central statute or an occupied field. The entries that the Judicial Commissioner considered were entry 31 of the Union List, covering post and telegraphs, telephones, wires, broadcasting and other similar forms of communication, and entry 6 of the State List, covering public health and sanitation, hospitals and dispensaries. The Commissioner’s attention was apparently not drawn to entry 1 of the State List, which was relevant to public order, but the discussion of that entry was left unfinished.

In this case, the court examined Entry No. 1 of the State List, which reads: “Public order (but not including the use of naval, military or air forces of the Union in aid of civil power).” The counsel relied upon that entry, either by itself or together with Entry No. 6 of the State List, and the court held that such reliance was permissible. After citing the well-known dictum of Lord Selborne in Queen v. Burah (1), the court reiterated that the legislatures of the country possess plenary legislative powers. Even after the constitutional division of legislative competencies, the supremacy of each legislature is limited to the subjects enumerated in the relevant entries of the Lists. The court noted that although the entries are intended to be mutually exclusive, they sometimes overlap and should be understood as a simple enumeration of broad categories. When an organic instrument contains enumerated legislative powers that conflict between rival Lists, the court must examine the impugned law in its “pith and substance.” Only if the true nature of the law falls substantially within an entry conferring legislative power is the law deemed valid; a minor encroachment on a rival List does not by itself invalidate the law.

The court quoted the reasoning of Gwyer, C. J., in Subramanyam Chettiar v. Muthuswamy Goundan (2), stating that legislation may purport to address a subject in one list while also touching on a subject in another list, and that the provisions of the enactment may be so intertwined that a strict literal interpretation would invalidate many statutes. Accordingly, the Judicial Committee’s rule requires examining the statute to ascertain its “pith and substance,” or its “true nature and character,” to determine whether it pertains to matters in one list or another. This principle was expressly approved and applied by the Judicial Committee in Prafulla Kumar Mukherjee (1) (1878) 3 App. Cas. 889 and by this Court on several occasions.

The court further observed that the power to legislate on a particular topic includes the authority to legislate on ancillary matters reasonably included within that power. Consequently, the court turned to a close analysis of the Act’s construction and provisions. The Act’s preamble declares an intent to control the use of sound amplifiers. Its first section deals with the title, extent, commencement, and interpretation of the Act, but does not elaborate the pith and substance. The final two sections prescribe penalties for unauthorized use of sound amplifiers and empower police officers to arrest without warrant. The constitutionality of these provisions depends on the second section, which embodies the essence of the legislation. That section prohibits the use of any sound amplifier in any place, public or otherwise, except at times, places, and subject to conditions allowed by a written order issued by a police officer of at least inspector rank. However, the prohibition does not apply to a sound amplifier that is a component of a wireless apparatus duly licensed under existing law when used in a place other than a public place.

The Court observed that the first section of the Act dealt only with the title, its territorial extent and the means of interpreting the statute, and therefore it did not reveal the core purpose of the legislation. The final two sections, however, created a punishable offence for the unauthorised use of sound amplifiers and authorised police officers to make an arrest without a warrant. The validity of those provisions depended entirely on whether the second section, which embodied the true substance of the law, was constitutional. That second section barred the use of any sound amplifier in any place, whether public or private, except at times, at places, and subject to conditions that could be prescribed by a written order. Such an order could be issued generally or for a specific case or class of cases by a police officer not below the rank of inspector. The provision expressly exempted from this prohibition the use of a sound amplifier that formed a component of a wireless apparatus that was duly licensed under any law then in force, when used in a location other than a public place. The Act further explained that the term “public place” meant any location—including a road, street, way, whether a thoroughfare or not, or a landing place—to which the public were granted access, had a right to resort, or over which they had a right to pass. The Court clarified that the essential prohibition targeted the use of an external sound amplifier that was not part of a licensed wireless apparatus, whether in a public place or elsewhere, unless the user obtained written permission from the designated authority and complied with the stipulated conditions. By contrast, the law did not forbid the use of a sound amplifier that was a component of a licensed wireless set when employed outside a public place. The Court cited the authority (1) (1947) L.R. 74 I.A. 23 to support this interpretation. The Court then turned to the policy issue, acknowledging that the increasing nuisance caused by blaring loud-speakers powered by high-output amplifiers required regulation. The key question, the Court noted, was whether such a salutary measure fell within any of the entries listed in the State List. It accepted that amplifiers function as instruments of broadcasting and communication, and consequently they fell within Entry 31 of the Union List. While the manufacture, licensing, ownership, possession and trade in such amplifiers could be regulated under that entry, the Court distinguished this from the regulation of the “use” of the devices, especially when such use, though lawful in terms of ownership, caused disturbance to the tranquillity, health and comfort of others. The Court rejected any suggestion that public health did not require control over the use of these devices at any time of day, or in proximity to hospitals, schools, offices or residential areas. It affirmed that the power to legislate for public health logically extended to regulating the operation of amplifiers that produced loud noises, particularly where the user’s disregard for the comfort and obligations owed to others created a manifest nuisance. The Court further rejected the argument that the legislation could not be justified on health grounds.

In examining the legislation, the Court observed that the true nature and purpose of the Act did not lie within Entry 31 of the Union List. Although Entry 31 deals with broadcasting and communication apparatus such as amplifiers, the Act was not primarily concerned with the ownership or possession of such devices. Instead, the essential aim of the impugned Act was to regulate the manner in which amplifiers were used so as to protect public health and tranquillity. Accordingly, the Court held that the substance of the legislation fell substantially, if not wholly, within the powers granted to the State to preserve, regulate and promote health and peace, and therefore did not fall within the Union List entry, even though the devices regulated were indeed apparatuses for broadcasting or communication. Referring to the authority of Latham, C. J., in Bank of New South Wales v. The Commonwealth, the Court reiterated that a power to make laws “with respect to” a subject is a power to make laws that, in reality and substance, address that subject. The Court explained that it is insufficient for a law merely to refer to a subject; the law must actually govern the subject in substance, as illustrated by income-tax statutes that apply to clergymen and hotel-keepers without being described as laws “with respect to” those persons, and by building regulations that apply to bank-constructed buildings without being characterised as laws “with respect to” banks.

Viewing the Act as a whole, the Court concluded that its substance fell within the powers conferred by Entry 6, and arguably Entry 1, of the State List, and that it did not intend to encroach upon the field of Union List Entry 31, though it incidentally touched upon a matter mentioned there. The Court noted that no Union List enactment was found that burdened the ownership or possession of amplifiers with similar regulation, and therefore no question of repugnancy or an occupied field arose. Consequently, the Court held without hesitation that the Act was fully covered by the State List entries and was intra vires the State Legislature. The order of the Judicial Commissioner was therefore set aside. The appeal was allowed, the decision of the lower court reversed, and the Act was declared valid in all its parts. Because the matter was four years old, the Court did not order a retrial and recorded that the State, having decided not to prosecute the respondents after the reversal, had made a statement to that effect at the hearing. The appeal was thus allowed.