1950 (5) TMI 42 - SC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of the Supreme Court under Article 32.
2. Violation of the fundamental right to freedom of speech and expression.
3. Validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949.
4. Interpretation of "public safety" and "public order" in the context of Article 19(2).

Issue-wise Detailed Analysis:

1. Jurisdiction of the Supreme Court under Article 32:
The Advocate-General of Madras raised a preliminary objection regarding the petitioner directly approaching the Supreme Court under Article 32, suggesting that the petitioner should have first approached the High Court under Article 226. The Court rejected this objection, stating that Article 32 provides a "guaranteed" remedy for the enforcement of fundamental rights, making the Supreme Court the protector and guarantor of these rights. The Court emphasized that it cannot refuse to entertain applications seeking protection against infringements of fundamental rights, distinguishing this from the jurisdictional practices in the United States.

2. Violation of the fundamental right to freedom of speech and expression:
The petitioner argued that the order banning the entry and circulation of the journal "Cross Roads" in the State of Madras violated his fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution. The Court agreed, citing that freedom of speech and expression includes the freedom of propagation of ideas and the freedom of circulation. The Court referenced U.S. cases like Ex parte Jackson and Lovell v. City of Griffin to support the notion that liberty of circulation is essential to freedom of publication.

3. Validity of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949:
The Court examined whether Section 9(1-A) of the impugned Act, which authorized the Provincial Government to prohibit or regulate the entry and circulation of documents for securing public safety or maintaining public order, was consistent with Article 19(2). The Court noted that the expression "public safety" in the impugned Act must be interpreted as part of the broader concept of public order. However, the Court held that the impugned provision was too broad and not limited to the security of the State, thus falling outside the permissible restrictions under Article 19(2).

4. Interpretation of "public safety" and "public order" in the context of Article 19(2):
The Court analyzed the terms "public safety" and "public order" and concluded that "public safety" must be understood within the wider context of public order. The Court highlighted that the Constitution allows restrictions on freedom of speech and expression only when they are directed against undermining the security of the State or its overthrow. The Court found that Section 9(1-A) of the impugned Act authorized restrictions for broader purposes, including public safety and order, which could include minor breaches of peace not necessarily threatening the State's security. Consequently, the provision was deemed unconstitutional and void.

Separate Judgment by Saiyid Fazl Ali, J.:
Justice Saiyid Fazl Ali dissented, referencing his reasoning in Brij Bhushan and Another v. The State. He argued that disorders affecting public safety and tranquillity could undermine the security of the State. He emphasized that the Act aimed at addressing serious disorders and that misuse of the law by the executive does not render it unconstitutional. Therefore, he would have dismissed the petition.

Conclusion:
The Supreme Court allowed the petition, quashing the order prohibiting the entry and circulation of the petitioner's journal in the State of Madras. The majority held that Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949, was unconstitutional as it authorized restrictions beyond those permissible under Article 19(2). Justice Saiyid Fazl Ali dissented, maintaining that the Act was valid and aimed at serious disorders that could undermine the State's security.