Dalbir Singh And Others vs The State Of Punjab on 6 February, 1962

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

Court: supreme-court

Case Number: Criminal Appeal No. 102 of 1960

Decision Date: 06 February 1962

Coram: N. Rajagopala Ayyangar, Bhuvneshwar P. Sinha, J.R. Mudholkar

In the matter titled Dalbir Singh and Others versus the State of Punjab, the judgment was delivered on the sixth day of February, 1962 by a Bench of the Supreme Court of India composed of Justice N. Rajagopala Ayyangar, Justice Bhuvneshwar P. Sinha and Justice J. R. Mudholkar. The case was reported in the All India Reporter at page 1106 of the 1962 volume and also appears in the Supreme Court Reporter Supplement, part three, page 25, with a citation in the 1982 Supreme Court Cases. The petitioners, Dalbir Singh and several others, were charged under section 3 of the Pepsu Police (Incitement to Disaffection) Act, 1953, a statute that had been enacted after the President of India assumed the powers of the legislature of the former State of Pepsu pursuant to article 356 of the Constitution. Section 3 of that Act provided that any person who intentionally causes or attempts to cause, or does any act which he knows is likely to cause, disaffection towards any government established by law in India among members of a police force, or who induces or attempts to induce any member of a police force to withhold his services or to commit a breach of discipline, shall be punishable with imprisonment. The provision was intended to safeguard the police service, described as an arm of the State tasked with maintaining public order, from actions that might undermine its discipline and thereby threaten public order.

The appellants, who had formerly served in the Pepsu Police, were alleged to have induced or attempted to induce members of the police force to stay away from duty, thereby causing a breach of discipline. They were tried before a First Class Magistrate at Faridkot, convicted, and their conviction was subsequently affirmed by the Punjab High Court. The appellants challenged the validity of their conviction on the ground that section 3 of the Act infringed the freedom of speech and expression guaranteed by article 19 (1) (a) of the Constitution and that the provision was not saved by the reasonable restrictions clause of article 19 (2). The Supreme Court examined whether the restriction fell within the ambit of article 19 (2), which permits curtailment of the right in the interests of public order. The Court held that the provision did not infringe article 19 (1) (a) and was constitutionally valid. It reasoned that the police service, being an essential instrument of the State for preserving public order, could justifiably be subject to disciplinary regulations, and that any breach of discipline by police members could pose a threat to public order. Consequently, section 3 was upheld as a law made “in the interests of public order” within the meaning of article 19 (2). The Court relied on the earlier decision in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, reported in the 1960 second volume of the Supreme Court Reports at page 821. Additionally, the Court observed that article 33 of the Constitution was not applicable in this case because Parliament had delegated the legislative powers of the State of Pepsu to the President, and any law enacted by the President would not possess the character of parliamentary legislation contemplated by article 33.

Article 33 of the Constitution was held not to apply in this case because Parliament had transferred the legislative powers of the State to the President, and any law made by the President would not possess the character of Parliamentary legislation that Article 33 contemplates.

The matter before the Supreme Court was Criminal Appeal No. 102 of 1960, which had been taken on special leave from the judgment and order dated 7 October 1959 of the Punjab High Court in Criminal Revision No. 610 of 1959. Counsel for the appellants were Hardev Singh and Y. Kumar, while the Advocate‑General of the State of Punjab, S. M. Sikri, together with N. S. Bindra and P. D. Menon, appeared for the respondent. The judgment was delivered on 6 February 1962 by Justice Ayyangar.

The appeal challenged principally the constitutional validity of section 3 of the Pepsu Police (Incitement to Disaffection) Act, 1953 (referred to as the impugned Act). The four appellants had formerly been members of the Pepsu Police force and were charged before the First Class Magistrate at Faridkot with three distinct offences: first, an offence under section 26 of the Pepsu Public Safety Ordinance (No. 7 of Samvat 2006); second, an offence under section 33 of the same Ordinance; and third, an offence under section 1 of the impugned Act.

The accused pleaded not guilty. After hearing the case, the learned Magistrate delivered his judgment on 28 August 1958, holding that the prosecution case was fully established against all the accused. Consequently, he convicted the four appellants under section 26 of the Public Safety Ordinance and sentenced each of them to six months’ imprisonment. The third appellant was additionally convicted under section 33 of the Ordinance and received a six‑month sentence for that offence as well. Appellants 1, 2 and 4 were each convicted under section 3 of the impugned Act and were sentenced to six months’ imprisonment, with all sentences directed to run concurrently.

The appellants appealed to the Sessions Judge at Bhatinda. That Court affirmed the convictions but altered the quantum of punishment. For the offence under section 26 of the Ordinance, the sentence against each of the four appellants was reduced to three months’ imprisonment. The third appellant, who had also been sentenced under section 33 of the Ordinance, had that sentence reduced to one year and a half. The convictions of appellants 1, 2 and 4 under section 3 of the impugned Act were each reduced to three months’ imprisonment, again with the sentences to run concurrently. After making these modifications, the Sessions Judge dismissed the appeals.

The appellants then preferred a revision before the High Court. A learned Single Judge heard the matter and, while accepting the revision insofar as it concerned the conviction and sentence under section 26 of the Ordinance, upheld the other convictions and sentences, albeit with a further reduction in the term of imprisonment. It was from this judgment of the High Court that the present appeal before the Supreme Court was instituted by the four appellants.

From the judgment of the High Court the four appellants filed the present appeal. The appeal specifically challenges the correctness of the convictions recorded against appellants one, two and four under section three of the impugned Act, and the conviction recorded against the third appellant under section thirty‑three of the Public Safety Ordinance. All of the appellants had been acquitted by the High Court of the charge brought against them under section twenty‑six of the same Ordinance; consequently it is unnecessary to discuss the wording of section twenty‑six or the nature of the offence it creates. In the proceedings before the lower courts, including the High Court, no question was raised concerning the legality of any of the statutory provisions under which the appellants were found guilty. However, before this Court, counsel for the appellants did not contest the validity of section thirty‑three of the Pepsu Public Safety Ordinance; instead, counsel attacked the constitutional validity of section three of the Pepsu Police (Incitement to Disaffection) Act, the provision for which appellants one, two and four were found to have committed an offence and were sentenced to imprisonment. Counsel for the appellants framed three matters for the Court’s consideration: first, whether section three of the impugned Act is constitutionally valid; second, assuming that section three is valid, whether appellants one, two and four were in fact proved to have committed the offence alleged under that provision; and third, whether appellant three was properly held guilty of an offence under section thirty‑three of the Pepsu Public Safety Ordinance. The Court will first address the challenge to the validity of section three of the impugned Act. The State of Patiala and East Punjab, commonly referred to as Pepsu, was listed among the States enumerated in Part B of the First Schedule to the Constitution when the Constitution became effective in January 1950. For reasons that need not be examined here, the administration of Pepsu was placed under presidential control pursuant to article 356 of the Constitution. By a presidential proclamation dated 4 March 1953, the powers of the State Legislature were declared to be exercisable by or under the authority of Parliament, as specified in article 356(1)(b). Subsequently Parliament enacted Act XXII of 1953, which obtained the President’s assent on 17 May 1953 and was titled “The Patiala and East Punjab States Union Legislature (Delegation of Powers) Act, 1953”. Section three of that enactment provides that the authority of the legislature of the State of Patiala and East Punjab to make laws, which had been declared by the proclamation to be exercisable by or under Parliament, is hereby conferred on the President. Although section three contains other subsections, those additional provisions are not relevant to the present appeal. The power thus delegated to the President will now be examined in the context of the present dispute.

In this matter the President, exercising the authority delegated to him by Parliament, enacted the Pepsu Act 1 of 1953. The long title of that Act was “An Act to provide a penalty for spreading disaffection among the police and for kindred offenses.” Section 3 of the same enactment was the provision that was directly challenged by the respondents in this appeal. Section 3 stated that a person who intentionally causes or attempts to cause disaffection towards any Government established by law in India among members of a police force shall be punishable with imprisonment of up to six months, or with fine, or with both. The provision further added that anyone who induces or attempts to induce a police member to withhold his services shall be punishable with imprisonment of up to six months, or with fine, or with both. It also penalised any person who, by any act he knew was likely to induce, caused a police member to commit a breach of discipline, with the same punishments. The validity of this provision was challenged on the ground that it infringed the freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. The petitioners contended that the section was not saved by the reasonable‑restriction clause of Article 19(2). Before addressing the submissions, the Court observed that Article 33 of the Constitution was not applicable to the present question of the provision’s validity. Article 33 provides that Parliament may by law determine the extent to which any of the fundamental rights may be restricted or abrogated as they apply to members of the Armed Forces. It also covers forces charged with maintaining public order, so as to ensure proper discharge of duties and maintenance of discipline. The Court noted that although the impugned provision dealt with discipline among forces responsible for public order, the President’s power to enact it derived from the delegation in Section 3 of Act XXII of 1953. That delegation vested only the powers of the State Legislature in the President, and therefore any law he enacted did not have the character of a parliamentary law contemplated by Article 33. Having set Article 33 aside, the Court identified the concise question to be whether the impugned provision was saved by Article 19(2). It was agreed by both sides that the provision infringed only the freedom of speech and expression guaranteed by Article 19(1)(a). The Court then reproduced the text of Article 19(2) as amended by the Constitution (First Amendment) Act of 1951. Article 19(2) states that nothing in sub‑clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law. Such a law may impose reasonable restrictions on the exercise of the right in the interest of the security of the State, friendly relations with foreign States, and public order. It may also restrict the right in the interest of decency or morality, or in relation to contempt of Court, defamation or incitement to an offence.

In examining the provision, the Court focused on the part of Article 19(2) that permits reasonable restrictions “in the interests of public order.” Counsel argued that Section 3 of the impugned law was overly broad because it covered not only actions that were closely connected with maintaining public order but also those whose relation to public order might be remote or speculative. While counsel did not dispute that influencing police loyalty or causing police officers to neglect their duties could threaten public order and therefore fall within the permissible limits of restriction under Article 19(2), counsel emphasized that the statute criminalised the act of inducing a police member to “commit a breach of discipline.” Counsel pointed out that the phrase “breach of discipline” was vague and could encompass both innocent conduct and acts of varying culpability. The Court then referred to its earlier detailed discussion in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, where the effect of the First Amendment’s substitution of the words “for the maintenance of public order” with “in the interests of public order” was analysed. Speaking for the Court, Justice Subba Rao explained that “public order,” as used in the different grounds of Article 19(2), was synonymous with public peace, safety and tranquility. He further observed that although the expression “in the interests of public order” was broader than the former wording, it did not allow any tenuous or fanciful link between the prohibited conduct and public order to sustain the law’s validity. Rather, there needed to be an intimate, reasonable and rational connection between the act penalised and the objective of preserving public order. The required nexus, therefore, had to be proximate and not remote, far‑fetched or problematic. Keeping this exposition in mind, the Court asked whether the link between the conduct prohibited by the challenged provision and the goal of ensuring tranquility and orderly life was so remote or fanciful as to indicate no proximate connection. The Court answered this question negatively for the appellants, holding that the impugned enactment aimed to restrict certain activities in the interests of the police service, which functions as the State’s arm charged with maintaining public order.

The judgment explained that the police force bears the responsibility of ensuring and maintaining public order. The efficiency of the police service and its usefulness in achieving the purpose for which it was created are protected by penalising any attempts to undermine the force’s loyalty or to discourage its members from performing their duties and remaining a disciplined body for the State. Any breach of discipline by police members, the Court held, inevitably threatens public order and tranquility because an indisciplined police force would be unable to serve as an effective instrument for maintaining order among the general public. The Court noted that counsel for the appellants did not seriously dispute that the provision under review, insofar as it penalised the creation of disaffection among police personnel or the incitement of police members to withhold their services from the Government, could be sustained as being “in the interests of public order.” The Court further observed that attempts to induce indiscipline among the police do not occupy a different legal position. The argument that the terms “discipline” or the phrase “breach of discipline” were vague was also rejected, and the Court expressed no hesitation in upholding the validity of the challenged provision of the Act.

The next issue raised by counsel concerned the correctness of the High Court’s finding that appellants 1, 2 and 4 had contravened section 3 of the Act. The Court explained that, when an appeal is heard by special leave, it ordinarily accepts as final the factual findings of the High Court as well as its assessment of oral testimony. Where evidence exists that could support a finding of the lower court, that finding cannot be re‑examined at this stage. In view of this principle, the Court saw little room for further argument on the merits of the case. The Court referred to the testimony of a witness, identified as P.W. 4, Krishan Dayal, whose statement recorded that the accused had urged police officers to abandon their duties, saying, “Police brothers, come and join us, stop the office work; we will sit here—in dharma, start hunger strike….” The Court concluded that this evidence clearly showed the accused had induced, or attempted to induce, members of the police force to withhold their services and to commit a breach of discipline by staying away from work. Accordingly, the Court found no basis to question the conviction of the three appellants under section 3 of the Act.

The Court observed that there was no material to show that the convictions of appellants 1, 2 and 4 for an offence punishable under section 3 of Act 1 of 1953 were improper or illegal. The remaining issue on the appeal concerned the conviction of the third appellant, Lal Singh, for an offence alleged under section 33 of the Ordinance. Section 33 reads: “Whoever induces or attempts to induce any public servant or any servant of a local authority to disregard or fail in his duties as such servant shall be punishable with imprisonment which may extend to one year or with fine or with both.” The High Court judge had recorded that, against Lal Singh, evidence of PW 11 Kartar Singh and PW 18 Balwant Singh, a foot‑constable, showed that he had asked them to disobey their officers and to abandon government work, and that this evidence substantiated his offence under section 33. The Court noted that the validity of section 33 of the Ordinance had not been contested; consequently the only question was whether Lal Singh had been properly found guilty. The testimony of the two prosecution witnesses was not disputed, and they had affirmed the matters cited by the learned judge. Applying the principles previously set out for appeals under Article 136, the Court found no ground to interfere with either the conviction or the sentence imposed on the third appellant.

Before concluding the case, the Court turned to a submission raised by counsel for the appellant. Counsel drew attention to certain police rules framed by the State Government which prohibited policemen from joining trade unions, and contended that the rule was unconstitutional because it violated article 19(1)(b). Counsel further argued that the activities of the four accused amounted to an attempt to form a union and that the legality of the police rule should therefore be examined in assessing the propriety of their convictions. The Court noted that the High Court judgment mentioned the rule only incidentally, as part of the factual narrative describing the accused’s conduct. The offences for which the accused were charged did not arise from a breach of that rule; moreover, the rule itself did not create any criminal offence. Accordingly, the validity of the rule was wholly irrelevant to the guilt of the accused under the substantive provisions of the statutes previously identified. The Court emphasised that invoking a fundamental right does not provide a defence to a charge for contravening a valid penal statute. Since the High Court had never challenged the police rule, the Court declined to allow counsel to raise the constitutional issue at this stage, and consequently dismissed the appeal.

The Court stated that it would not allow the counsel appearing for the parties to present any argument before it that concerned the legality or the validity of the rule in question, and therefore it declined to entertain any issue raised on that ground. Because the Court expressly refused to permit any discussion of the rule’s validity, the appeal could not proceed on that basis and consequently the application was dismissed. The final order of the Court recorded that the appeal was rejected and the dismissal was affirmed, leaving the matter decided in the lower forum unaltered.