The Superintendent, Central Prison, Fatehg... vs Ram Manohar Lohia

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

Court: supreme-court

Case Number: Criminal Appeal No. 76 of 1956

Decision Date: 21 January, 1960

Coram: Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.C. Das Gupta, J.C. Shah

In this matter the Supreme Court of India delivered its judgment on 21 January 1960 concerning the petition filed by the Superintendent of the Central Prison at Fatehgadh against Ram Manohar Lohia. The bench that heard the case consisted of Justice Subbarao, Justice K. Sinha, Chief Justice Bhuvneshwar P. Sinha, Justice P. B. Gajendragadkar, Justice P. B. Gupta, Justice K. C. Das, and Justice J. C. Shah. The decision is reported in the 1960 volume of the All India Reporter at page 633 and in the 1960 Supreme Court Reports, second series, page 821. The case also appears in several citator references, including APL 1962 SC1106 (8) and RF 1967 SC1110 (16). The substantive issue arose under Section 3 of the Uttar Pradesh Special Powers Act, 1932 (U.P. XIV of 1932). That provision declares that any person who, by spoken or written words, signs, visible representations, or any other means, instigates, expressly or by implication, any individual or class not to pay or to defer payment of any liability, and anyone who, with intent or knowledge that such instigation is likely to be communicated either directly or indirectly, performs any act in furtherance thereof, shall be liable to imprisonment for up to six months, or a fine not exceeding Rs. 250, or both. The appellant had been prosecuted under this section for delivering speeches that encouraged cultivators to withhold payment of increased irrigation rates demanded by the Government. He consequently filed a writ of habeas corpus in the High Court, contending that the operative provision conflicted with article 19(1)(a) of the Constitution and was therefore void. The High Court ruled in his favour, ordered his release, and the State subsequently appealed to this Court.

The principal question that the Supreme Court was called upon to determine was whether the impugned provision represented a reasonable restriction in the interest of public order and was therefore permissible under article 19(2) of the Constitution. The Court observed that, taken in a broad sense, all the grounds enumerated in article 19(2) on which reasonable restrictions on freedom of speech may be based could be subsumed under the general heading “public order.” However, the expression “public order,” which was inserted into the article by the Constitution (First Amendment) Act, 1951, must be distinguished from the other grounds and is ordinarily to be read in an exclusive sense. The Court explained that “public order” refers specifically to public peace, safety and tranquility, and is to be understood in contrast to national upheavals such as revolution, civil strife and war that affect the security of the State. In arriving at this conclusion the Court referred to earlier authorities, including Romesh Thappar v. State of Madras (1950) S.C.R. 594, Brij Bhushan v. State of Delhi (1950) S.C.R. 605, and other decisions that have delineated the scope of permissible restrictions. The Court consequently held that the wide‑ranging provisions of section 3 of the Uttar Pradesh Special Powers Act could not be said to have any proximate or foreseeable connection with the preservation of public order as defined, and therefore the section could not be sustained as a reasonable restriction on the freedom of speech guaranteed by article 19(1)(a).

The Court observed that a restriction on speech can be deemed reasonable only when it bears a clear and direct relationship to the purpose for which the legislation was enacted and does not exceed that purpose. It reiterated that any restriction justified on the ground of public order must be closely connected to maintaining public peace, safety and tranquility; a restriction that lacks a proximate nexus with public order and is only tenuously or hypothetically linked cannot satisfy the requirement of reasonableness under Article 19(2) of the Constitution. The Court cited earlier decisions, including Rex v. Basudeva (AIR 1950 FC 67), Ramji Lal Modi v. State of U.P. (1957 SCR 860) and Virendra v. State of Punjab (1958 SCR 308), to illustrate this principle. Applying the principle to the present case, the Court held that the expansive provisions of section 3 of the impugned Act do not demonstrate any foreseeable or direct connection with the preservation of public order that the provision seeks to protect. Consequently, the provision infringes the freedom of speech guaranteed by Article 19(1)(a) and must be declared unconstitutional.

The Court further rejected the argument that an individual's encouragement not to pay taxes might, in a remote future, spark a revolution and thereby disturb public order, emphasizing that fundamental rights cannot be curtailed on the basis of speculative or imaginary outcomes. It also dismissed the contention that a democratic society cannot accommodate agitational tactics or that any call to defy an unjust law automatically amounts to a breach of public order, for such a view would erode the very freedom of speech on which democracy rests. The doctrine of severability could not be applied to the challenged section because it was impossible to delineate precisely which categories of instigation fell within constitutionally permissible limits and which did not, rendering a separation of valid and invalid portions unworkable. The Court referred to R.M.D. Chamarbaugwalla v. Union of India (1957 SCR 930) for this distinction and distinguished it from the present situation. It also mentioned Romesh Thappar v. State of Madras (1950 SCR 594) and Chintaman Rao v. State of Madhya Pradesh (1950 SCR 759) in support of its reasoning. The judgment proceeded as a criminal appellate jurisdiction matter, specifically Criminal Appeal No. 76 of 1956, arising from the order dated 27 August 1954 of the Allahabad High Court in Criminal Miscellaneous Writ No. 20 of 1954. The State of Uttar Pradesh was represented by the Advocate‑General, while the appellants were counselled by G. O. Mathur and C. P. Lal, and the respondent was defended by counsel. The judgment was delivered on 21 January 1960 by Justice Subba Rao, who framed the appeal as a question of interpreting the phrase “in the interest of public order” in Article 19(2) of the Constitution, and then turned to the factual matrix of the case.

The factual background was not contested and was confined to a narrow range. The respondent, Dr. Ram Manohar Lohia, served as General Secretary of the Socialist Party of India. The Government of Uttar Pradesh increased the irrigation rates that were levied on cultivators for water supplied through canals. The political party to which the respondent belonged resolved to launch an agitation against the increase, alleging that the higher rates imposed an unbearable burden on the cultivators. In accordance with the party’s policy, the respondent travelled to Farrukhabad and addressed two public meetings, during which he delivered speeches urging the audience not to pay the enhanced irrigation rates to the Government. On 4 July 1954, at ten o’clock at night, he was arrested and produced before the City Magistrate of Farrukhabad, who remanded him for two days. After completing the investigation, the Station Officer of Kaimganj filed a charge‑sheet against the respondent before the Judicial Officer, Sri P. R. Gupta, at Farrukhabad. On 6 July 1954, the Magistrate proceeded to the jail to try the case, but the respondent objected to holding the trial within the jail premises. When the Magistrate insisted on continuing the trial, the respondent obtained an adjournment, stating that he intended to approach the High Court for a transfer of the case from the magistrate’s jurisdiction. Subsequently, the respondent filed a petition before the Allahabad High Court seeking a writ of habeas corpus, contending, among other grounds, that section 3 of the Uttar Pradesh Special Powers Act (Act No. XIV of 1932), hereinafter called the Act, was void under the Constitution. The petition was first heard by a division bench of the High Court consisting of Judges Desai and Chaturvedi, before whom elaborate arguments were presented covering a wide field. The two learned judges delivered differing opinions on the principal points raised and therefore referred the matter to the Chief Justice for the opinion of a third judge on two specific questions: (i) whether the provision of section 3 of the Uttar Pradesh Special Powers Act of 1932, which made it a penal offence 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 as on 26 January 1950; and (ii) if so, whether the provision was nevertheless in the interests of public order. The petition was then placed before Judge Agarwala, who acted as the third judge and, agreeing with Judge Desai, answered the first question by holding that the provision of section 3 was indeed inconsistent with article 19(1)(a) of the Constitution on 26 January 1950, and answered the second question by holding that the restrictions imposed by section 3 were not in the interests of public order.

In the proceeding, the Court observed that the provision of the U. P. Special Powers Act, 1932, which made it a criminal offence for a person, by spoken words, to instigate a class of persons not to pay dues recoverable as arrears of land revenue, was not, in the Court’s view, within the interests of public order. After this observation, the matter was placed before the two learned Judges who had originally heard the case. Relying on the majority opinion of those Judges, the High Court allowed the petition and ordered that the respondent be released. The State challenged that order by filing the present appeal. The Advocate General for the State, who appeared on behalf of the appellant, stated before the Court that he did not intend to contest the correctness of the majority view on one of the principal issues raised, namely whether the mere passage of the Act automatically deprived a citizen of the freedom of speech guaranteed by Article 19(1)(a) of the Constitution, and that its validity should instead be examined under Article 19(2). He did not dispute the validity of the finding on that point but assumed its correctness for the purposes of the present case, and therefore declined to elaborate further on the issue.

The Advocate General then summarized his argument as follows: the legislature is competent to enact laws that place reasonable restrictions on the right of a citizen to freedom of speech and expression when such restrictions are in the interests of public order, among other grounds. He explained that the phrase “in the interests of public order” carries a broader connotation than the phrase “for the maintenance of public order.” He described laws as rules made by the legislature for the governance of the people, which are binding and intended to preserve public peace and order. According to his submission, the expressed purpose of section 3 of the Act was to prevent persons from inciting others to violate laws that impose a liability on a person or class of persons to pay taxes, other dues to the State, any authority, or any land‑owner. Because the impugned section was enacted with the stated objective of safeguarding public order, it was therefore protected by Article 19(2) of the Constitution.

The Advocate General further pointed out that the State’s purpose in preferring the appeal was to obtain a determination from this Court on the constitutional validity of section 3 of the Act, and not to pursue the matter against Dr Lohia. At the time the appeal was heard, the respondent was absent and was not represented by counsel. Recognising the importance of the question raised, the Court invited a senior counsel to assist, and that counsel kindly agreed to do so. The assisting counsel supported the majority view of the High Court, and the Court recorded its gratitude for his assistance.

At the outset, the Court noted that a brief historical reference to the Act would be appropriate. The Act had originally been enacted in 1932 during British rule as an attempt to counter the campaign of non‑payment of taxes and other forms of agitation undertaken by the Congress Party, and it had initially been placed on the statute book for a limited period.

In 1940, while the State was under Governor’s rule, the legislation that had originally been placed on the statute book for only one year was made permanent. Under the Act, Sections 1 and 2 became operative immediately upon the Act’s passage, and Section 1(2) authorised the Government, by way of a notification, to extend any or all of the remaining sections to any district or to any part of a district within the United Provinces. After the adoption of the Constitution, the Act was not repealed; instead it was allowed to remain in force with the necessary adaptations incorporated into the statute book. Between April and June 1954, the State Government extended the provisions of the Act to thirty‑three districts, one of which was Farrukhabad district. The Court then turned to the provisions of the Act in order to determine its scope and field of operation. The preamble disclosed that the legislation had been enacted in 1932 “to make provision against and to take powers to deal with instigation to the illegal refusal of the payment of certain liabilities.” Section 2 defined the term “liability” to include land revenue or any sum recoverable as arrears of land revenue, any tax, rate, cess or other dues payable to the Government or to any local authority, as well as rent of agricultural land or any amount recoverable as arrears of such rent. Section 3 prescribed the punishment for instigation to the non‑payment of a liability. The text of Section 3 read: “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 provided that any person to whom an arrear of liability was due could apply to the Collector for its recovery, and that the Collector was authorised to realise the amount as an arrear of land revenue. The impugned Section 3 could be broken down into the following components: (i) a person, by word, either spoken or written, or by signs, visible representations or otherwise; (ii) who 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) who does an act with intent that any words, signs or visible representations shall be communicated to any person or class of persons; (viii) who knows that it is likely that such communication shall occur; (ix) that such communication may be made directly or indirectly; and (x) that the offender shall be punished with imprisonment or with a fine or with both.

Under the statutory provision, the punishment of fine or both was prescribed, and the legislature deliberately cast a broad net to capture a wide variety of instigatory conduct. The provision covered any act of encouragement, ranging from a simple friendly suggestion to an organized campaign, that urged a person not to pay or to postpone payment of a liability owed to the Government, any authority, or any person to whom rent was payable in respect of agricultural land. The meaning of the section became clearer when illustrated rather than defined. First, a person A could persuade another person B not to pay any liability to the Government, any authority, or a landowner. Second, A could persuade B to defer payment of any such liability to the Government, any authority, or a landlord. Third, A could address an entire class of persons and induce them to act in the same manner. Fourth, A could accomplish any of these acts not only through spoken words but also by signs, visible representations, or any other mode of communication. Fifth, A might act in good faith, either to have the claim adjudicated by a court of law or to obtain time for legislative change. Sixth, A could induce B not to pay any amount due to the Government or any authority, even though the amount could later be recovered by the concerned authority as arrears of land revenue. Seventh, A could convey to a third person C, with intention or knowledge that the instigation might be communicated to B, that B should not pay. Eighth, any statement made by A to C could be interpreted as implying such instigation. In its extensive scope, the section therefore encompassed both innocent and culpable individuals, bona‑fide and mala‑fide advice, singular persons and groups, abstention from payment as well as deferred payment, expressed or implied encouragement, and direct or indirect influence, and it applied to liabilities owed not only to the Government but also to any authority or landholder. In effect, no individual, whether a legal adviser, a friend, or a well‑wisher of the instigated person, could escape the reach of this provision, even when the rent due had been collected through coercive means or other processes.

The Court then turned to the question of constitutional validity of the provision. It began by referring to the relevant portions of the Constitution. Article 19(1) provided that all citizens possessed the right to freedom of speech and expression. Article 19(2) clarified that nothing in sub‑clause (a) of clause (1) would affect the operation of any existing law, nor would it prevent the State from making any law, insofar as such law imposed 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. The Court noted that clause (2) of Article 19 had been amended by the Constitution (First Amendment) Act, 1951, which introduced additional grounds for restricting freedom of speech, including friendly relations with foreign States, public order and incitement to an offence. By citing these constitutional provisions, the Court set the stage for assessing whether the statutory restriction on speech embodied in the section was a reasonable limitation in the interests of public order, as required by the amended Article 19(2).

It is a self‑evident and common observation that freedom of speech stands as one of the principal safeguards of a democratic system of government. Equally, it is clear that such freedom can flourish only when society is orderly. Accordingly, clause (2) of Article 19 does not interfere with the operation of any law that already exists, nor does it prevent the State from enacting a new law, provided that the law imposes reasonable restrictions on the exercise of the right of free speech in the interest of public order and for other permissible objectives. To uphold either an existing statute or a newly enacted provision that falls under clause (2) of Article 19, and insofar as it is relevant to the matter before the Court, two requirements must be satisfied: first, the restrictions must be reasonable; and second, they must be imposed in the interest of public order.

Before the Court can analyse the scope of the expressions “reasonable restrictions” and “in the interests of public order,” it is necessary to determine the precise meaning of the term “public order” as used in the constitutional provision. The phrase “public order” carries a very wide connotation. Order represents a fundamental necessity in any organized community; it denotes a condition in which the society or community functions in an orderly manner, allowing citizens to pursue their ordinary activities peacefully. As an eminent judge of the Supreme Court of the United States observed, “the essential rights are subject to the, elementary need for order without which the guarantee of those rights would be a mockery.” The Constitution itself does not define the expression, but the term appears in List II of the Seventh Schedule and was inserted by the Constitution (First Amendment) Act, 1951 into clause (2) of Article 19. Understanding the sense in which the term is employed in Article 19 requires an appreciation of how the article was interpreted before its insertion and what defect Parliament sought to cure by the amendment.

The effect of clause (2) of Article 19 on Article 19 (1)(a) prior to the amendment was examined by this Court in Romesh Thappar v. State of Madras (1). In that case the Government of Madras, exercising powers under section 9(1‑A) of the Madras Maintenance of Public Order Act, 1949, issued an order banning the entry and circulation of a journal entitled “Cross‑Roads” within the State. The petitioner contended that the order infringed his fundamental right to freedom of speech and expression. At the time the order was made, the expression “public order” was not yet part of Article 19(2); the provision then referred only to “the security of the State.” In considering whether the impugned legislation was enacted in the interests of the security of the State, Justice Patanjali Sastri, then serving on the bench, referred to the observations of Stephen, thereby linking the earlier textual framework to the contemporary constitutional discourse.

In this case, the Court referred to a passage from the work Criminal Law of England, which clarified that offences disturbing public tranquillity are, in theory, offences against public order, and that the distinction among them is essentially one of degree. The passage explained that, for the purpose of determining the appropriate punishment, these offences may be classified into separate minor categories, as has been done in the Indian Penal Code. The Court then observed that the Constitution, while establishing varied criteria for permissible legislation that may restrict the fundamental rights listed in article 19(1), placed offences against public order that seek to undermine the security of the State or to overthrow it into a distinct category. The Constitution, the Court noted, permits legislative restriction of freedom of speech and expression only when the conduct endangers the foundations of the State or threatens its overthrow; lesser disturbances cannot justify curtailment of those rights. The learned Judge further explained that the Constitution therefore draws a line within the field of public order or tranquillity, roughly separating serious, aggravated forms of public disorder that are calculated to endanger State security from relatively minor breaches of peace that are of purely local significance, treating the difference in degree as if it were a difference in kind. Continuing, the Judge stated the opinion that unless a law restricting freedom of speech and expression is aimed solely at preventing the undermining of State security or its overthrow, such a law cannot fall within the reservation allowed under clause (2) of article 19, even if the restrictions were generally conceived in the interests of public order. From this decision, the Court derived two propositions: first, that maintenance of public order is equated with maintenance of public tranquillity; and second, that offences against public order are divided into two categories – major offences affecting the security of the State and minor offences involving breaches of peace of purely local significance. The Court further cited that in Brij Bhushan v. State of Delhi, the majority followed this earlier decision in the context of section 7(1)(c) of the East Punjab Public Safety Act, 1949. In contrast, Justice Fazl Ali, in his dissent, gave the term “public order” a broader meaning than that adopted by the majority. At page 612, he observed that while “public disorder” is wide enough to include a small riot, an affray, or other disturbances affecting a small group or persons, “public unsafety” or insecurity of the State is usually connected with serious internal disorders and disturbances of public tranquillity that jeopardise State security.

In this observation the Court indicated that the expression “public order” is understood to mean public peace and safety. It appears that, in order to overcome the effect of the two earlier decisions, the term “public order” was deliberately inserted into Article 19(2) of the Constitution by the Constitution (First Amendment) Act, 1951. The purpose of this insertion was to bring within the permissible restrictions under clause (2) of Article 19 offences that involved a breach of purely local significance. After the amendment was effected, this Court elucidated the scope of the earlier Romesh Thappar case in the matter of The State of Bihar v. Shailabala Devi. The latter case dealt with the constitutional validity of Section 4(1)(a) of the Indian Press (Emergency Powers) Act, 1931, a provision that criminalised the use of words, signs or visible representations that incite, encourage or are likely to incite the commission of murder or any cognizable offence involving violence. Mahajan, J., then presiding, observed at page 660 that “the deduction that a person would be free to incite to murder or other cognizable offence through the press with impunity is drawn from our decision in (1) [1950] S.C.R. 605 (2) [1952] S.C.R. 654.” He further noted that the Romesh Thappar case could have been avoided as it was avoided by Shearer, J., who, in very emphatic terms, stated: “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 Section 4(1)(a) was again examined after the Constitution (First Amendment) Act, 1951, which was expressly made retrospective; consequently the provision clearly fell within the ambit of the words “in the interest of public order.” Apart from that, the observations of Mahalan, J., as he then was, indicate that even without the amendment the provision would have been upheld because its objective was to prevent incitement to murder. The term “public order” was also understood in the United States and England as offences against public safety or public peace. The Supreme Court of the United States, in Cantewell v. Connecticut, observed that “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.” Those American decisions therefore sanctioned a wide range of restrictions on freedom of speech in the interests of public order, encompassing the entire gamut of restrictions that may be imposed under the different heads of Article 19(2) of this Constitution.

In the discussion of the extent of restrictions that may be placed on freedom of speech, the Court referred to a well‑known constitutional law text that summarises several United States Supreme Court decisions. The summary demonstrates that the State may, in the interests of public order, forbid and punish the production of loud and raucous noise in streets and public places when such noise is created by sound‑amplifying devices. The State may also regulate the hours and locations at which public discussions may be held and may control the use of public streets for exercising speech. Further, the State may order the removal of hecklers from meetings and assemblies, and may punish utterances that are likely to cause an immediate breach of the peace or a riot, distinguishing such utterances from those that merely cause public inconvenience, annoyance or unrest.

The Court also noted that English legislation has addressed similar concerns. The Public Order Act of 1936 makes it an offence to use threatening, abusive or insulting words or conduct in any public place or at any public meeting when the intent is to provoke a breach of the peace or when a breach of peace is likely to occur. The Theatres Act of 1843, on the other hand, empowered the Lord Chamberlain to prohibit the public performance of any stage play that, in his judgment, would be contrary to good manners, decorum or the preservation of public peace. In each jurisdiction, the rationale for these statutes is the same: without such limitations, public safety and tranquillity would be endangered.

Turning to India, the Court explained that Article 19(2) of the Constitution partitions the wide notion of “public order” into separate heads. That article permits reasonable restrictions on freedom of speech and expression for the security of the State, for maintaining friendly relations with foreign States, for public order, for decency or morality, and in relation to contempt of court, defamation, or incitement to an offence. While all these grounds could be gathered under a broad definition of public order, the enumeration indicates that each is intended to be distinct and not to overlap automatically. Consequently, “public order” is understood, especially in light of the amendment history, as synonymous with public peace, safety and tranquillity.

The Court then addressed the meaning of the phrase “in the interest of public order.” The learned Advocate General argued that this wording carries a wider connotation than the phrase “for the maintenance of public order.” He submitted that any breach of law, however remote its tendency to disturb public order, should fall within the scope of the expression, and he sought authority to support this expansive interpretation.

In relying on the decision of this Court in Ramji Lal Modi v. State of U.P., the Court referred specifically to the observations of Chief Justice Das at page 865. It was noted that the amended provision uses the phrase “in the interests of” rather than the more limited wording “for the maintenance of.” The Court recalled an earlier remark in Debi Saran v. State of Bihar, where it was held that the expression “in the interests of” gives the provision a very wide reach. According to that view, a statute need not be drafted expressly to maintain public order; it may nevertheless be enacted “in the interests of” public order and still fall within the scope of the protection afforded by the clause. The same principle was reiterated by the learned Chief Justice in Virendra v. State of Punjab, page 317, where it was again emphasized that the words “in the interests of” are broad and extend beyond statutes that directly aim at maintaining public order or protecting the public against a particular evil. The Court clarified that these observations do not imply that any tenuous or imaginative link between an impugned Act and public order would be sufficient to uphold the Act’s validity.

The Court explained that the Chief Justice was merely drawing a distinction between a statute that expressly and directly states a purpose of maintaining public order and one that does not state that purpose but allows it to be inferred. The distinction also covers statutes that achieve the result of maintaining public order indirectly, yet it does not dispense with the requirement of a close, intimate connection between the statute and the public‑order objective it is said to serve. Moreover, the clause contains an additional limitation that any restriction must be “reasonable.” The Court has defined “reasonable” in several decisions as requiring that a restriction have a reasonable relation to the object of the legislation and must not exceed that object. Consequently, a restriction made “in the interests of public order” must also be reasonably related to achieving public order. If a restriction lacks a proximate relationship to the attainment of public order, it cannot be considered a reasonable restriction within the meaning of the provision. The Court noted that a full bench decision of the Federal Court further supports this interpretation.

In the case of Rex v. Basudeva, the Court offered observations that are useful for interpreting the phrase in question. In that matter the appellant had been detained pursuant to an order issued by the Government of Uttar Pradesh under the Uttar Pradesh Prevention of Black‑Marketing (Temporary Powers) Act, 1947. The central issue was whether the preventive detention authorized by section 3(1)(i) of that Act qualified as detention for reasons connected with the maintenance of public order. The argument presented in that case followed the same line as the argument advanced in the present proceedings. The learned Advocate General contended that habitual black‑marketing in essential commodities would inevitably disrupt the machinery of regulated distribution and that such disruption could, in turn, lead to breaches of the peace; consequently, detention aimed at preventing such black‑marketing fell within the scope of Entry I of List II. In response, Justice Patanjali Sastri, who was then a Judge of the Federal Court, observed at page 69 that activities of this kind are so remote in the chain of causation leading to the maintenance of public order that preventive detention on that basis could not, in his opinion, be said to fall within Entry I of List II. He stressed that the connection required must be real and proximate, and not far‑fetched or speculative.

The Court held that the decision in Basudeva correctly established the appropriate test. A restriction imposed in the interest of public order must be a reasonable restriction that bears a proximate connection or nexus to public order, and it must not be remote, hypothetical, or problematical. Applying this principle to the section under challenge, the Court asked whether the acts prohibited by section 3 have any proximate connection with public safety or tranquility. The Court noted that it had already examined the language of section 3, which criminalises any instigation, whether by spoken word, written communication, signs or visible representations, that encourages any class of persons not to pay or to defer payment of any liability, including taxes, dues to the Government, an authority or a landowner. The provision even penalises seemingly innocuous speeches. The Court found no proximate or even foreseeable link between such instigation and the public order that the section purported to protect. The Court rejected the Advocate General’s suggestion that the act of persuading a single individual not to pay a tax could, over time, ignite a revolutionary movement that would destroy public order. It emphasised that fundamental rights cannot be restricted on the basis of hypothetical or imaginary outcomes. While acknowledging that in a democratic system there is no room for an agitational approach and that an inadequate law should be corrected through democratic processes, the Court warned that accepting the argument without clear limits would effectively undermine the freedom of speech that forms the foundation of democratic life.

In the Court’s view, allowing the restriction would undermine the constitutional freedom of speech, which forms the core of democratic life. The Court held that without a direct and proximate link between the alleged incitement and the preservation of public order, the limitation could not be considered reasonable nor in the public interest. Consequently, the Court determined that section 3 of the Act violated the fundamental right guaranteed by Article 19(1)(a) of the Constitution and therefore had to be struck down. The counsel for the respondent then argued that the offending provision could be severed and, if isolated, could operate within the narrow scope permitted by Article 19(2). He proposed that the section be read to impose liability only on a person who, by spoken or written words, signs, visible representations, or any other means, expressly or implicitly encourages any class of persons not to pay or to defer payment of any liability, and who, with knowledge or intent, causes such incitement to be communicated, directly or indirectly, to any class of persons in any manner. The counsel asserted that this limited reading would remove the unconstitutional element of the provision. He further invoked the doctrine of severability, citing Article 13(1) of the Constitution, which declares that any law inconsistent with Part III is void only to the extent of that inconsistency, implying that the consistent and inconsistent portions of a law are severable. The Court noted that this doctrine, as it relates to fundamental rights, had been examined in three earlier decisions. In the Romesh Thapper case, the Court rejected a similar argument, observing that when a law is framed so broadly that it could authorize restrictions both within and beyond the limits permitted by the Constitution, it cannot be upheld even for the portion that might fall within permissible bounds, because the possibility of its application for unconstitutional purposes cannot be excluded; therefore, the entire provision must be declared void. The same principle was reaffirmed in Chintaman Rao v. State of Madhya Pradesh, where the Court emphasized that a law whose language is sufficiently wide to authorize restrictions beyond constitutional limits cannot be considered valid, even with regard to any portion that might pertain to agricultural labour or other specific categories.

The Court observed that the wording of the provision under consideration was sufficiently broad to permit restrictions that fell both within and outside the limits of constitutionally permissible legislative action affecting the right. Because the possibility could not be excluded that the provision might be applied for purposes that the Constitution did not sanction, the Court held that the provision had to be declared entirely void. The Court then noted that the broad application of this principle appeared to have been somewhat limited by a later decision of the Court in R. M. D. Chamarbaugwalla v. The Union of India. In that case the constitutionality of sections 4 and 5 of the Prize Competitions Act, 1955, was challenged on the ground that the definition of “prize competition” in section 2(d) covered not only gambling‑type contests but also contests in which success depended to a substantial degree on skill. After examining the legislative history, the declared object of the Act, and the language of the statute, the Court concluded that the Act was intended to regulate only those competitions in which success did not depend to any substantial degree on skill. That conclusion was enough to reject the contention raised in the case. However, even assuming that the definition in section 2(d) did include skill‑based contests, the Court examined the doctrine of severability in detail and formulated seven rules of construction for determining when a provision could be severed. Applying those rules, the Court held that the impugned provisions could be severed insofar as they applied to competitions where success did not depend to any substantial degree on skill. From the discussion the Court derived several propositions: (1) “public order” is synonymous with public safety and tranquillity and denotes the absence of disorder of local significance, unlike national upheavals such as revolution, civil strife, or war that affect the security of the State; (2) a proximate and reasonable nexus must exist between the speech and public order; (3) section 3, as presently worded, does not establish such a nexus in most cases within its scope; (4) there is a conflict of decisions on the question of severability when a provision’s language is broad enough to encompass restrictions both within and outside constitutionally permissible legislation—one view holds that the provision cannot be split if there is any possibility of unconstitutional application, while another view holds that the provision is valid if it can be severed and applied to an object clearly distinguished from other objects that lie outside constitutional limits; and (5) the provisions of the section are so intertwined that the doctrine of severability cannot be applied to preserve a part of it while striking down the remainder.

It was held that the doctrine of severability could not be applied so as to allow the Court to uphold any part of the provision while discarding the remainder. The Court found it unnecessary to declare a preference for any of the earlier decisions that had been cited. Assuming that the summary of construction rules set out in the last of those cited cases was correct and complete, the Court was not convinced that, even with the deletions proposed by the Advocate General, the impugned section could in whole or in part be rescued. The wording of the section, after the suggested deletions, continued to exhibit the same defect that existed before any deletions were made. Those proposed deletions merely removed certain persons from the operation of the section, limiting it to a particular class, but did not cure the shortcomings previously identified by the Court.

In the earlier decision of R. M. D. Chamarbaugwalla’s Case, the Court had recognised a clear distinction between competitions that were gambling in nature and those where success depended on skill, a distinction long accepted in legislative practice. In contrast, the present matter did not permit a precise classification of the various forms of incitement that might fall either within or outside the scope of constitutional prohibitions. The Court therefore concluded that the constitutional validity of a provision could not rest on such an uncertain categorisation. Whether the principles articulated in the first two decisions were applied or the approach taken in the third decision was invoked, the Court found that the provision could not be sustained as constitutionally valid.

The Court consequently held that section 3 of the Act was void because it infringed Article 19(1)(a) of the Constitution. Accordingly, the entire section was struck down as invalid, and any prosecution of the respondent under that section was declared void. The Advocate General had made an urgent appeal, urging the Court to suggest that, although the present section was void as an unreasonable restriction on the fundamental right, the State could, in the interest of public order, re‑draft the provision so that it complied with the limitations permissible under Article 19(2). The Court stated that it was not within its jurisdiction to offer advice or make general observations on matters that were not specifically raised for determination in the present case. The Court noted that the State remains free to enact reasonable restrictions that are permissible under Article 19(2). In the end, the Court dismissed the appeal, and the appeal was dismissed.