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TMI Blog1952 (3) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... to the High Court on 78 10th April, 1950, under article 226 of the Constitution complaining that the impugned Act and the Order dated 10th March, 1950, purporting to be issued there-under infringed the fundamental right conferred on him by article 19 (1) (c) of the Constitution to form associations or unions and seeking appropriate reliefs.The High Court by a full bench of three Judges (Raja-mannar C.J., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14th September, 1950, and granted a certificate under article 132. The State of Madras has brought this appeal. The Government Order referred to above runs as follows:-- WHEREAS in the opinion of the State Government, the Association known as the People s Education Society, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and constitutes a danger to the public peace; NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act XIV of 1908) hereby declares the said association to be an unlawful association within the meaning of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e such association to be unlawful. The amending Act substituted for clause (b) in Section 15(2) the following clause :-- (b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association-- (i) constitutes a danger to the public peace, or (ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object . For the old section 16, sections 16 and 16 A were substituted as follows: 16. (1) A notification issued under clause (b) of subsection (2) of section 15 in respect of any association shall- (a) specify the ground on which it is issued, the reasons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor; and (b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification. (2) Nothing in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o prescribed. By section 17F jurisdiction of civil courts, save as expressly provided, is barred in respect of proceedings taken under sections 17 A to 17E. By section 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued as required in section 16 (1)( a) and (b) as amended and thereafter the procedure provided by the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be considered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on 21st August, 1950. It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare associations unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15(2)(b) as amended, and the reference to the opinion of the Government is dropped. This led to some discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was not disputed that the restrictions in question were imposed in the interests of public order . But, are they reasonable restrictions within the meaning of article 19 (4)? Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted due process clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights , as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have vent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard. or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding force, was considered by a majority to be reasonable procedure for restricting the right to move freely conferred by article 19 (1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present ease, as the impugned Act provided that the Advisory Board s report was binding on the Government. We cannot agree. We consider that that ease is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, section 4 (1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. Khare s case([1950] S.C.R. 519.), authorised both preventive detention and externment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc. Besides, both involve an element of emergency requiring prompt steps to be taken to prevent apprehended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appropriate action on their own responsibi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he place where such association carries on its activities provided for Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration their right of making a representation, which is the only opportunity of presenting their case, would be 1oat. Yet, the consequences to the members which the notification involves are most serious, for, their very membership thereafter is made an offence under section 17. There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provision is made for personal or other ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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