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TMI Blog1960 (8) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... al of the case, it was withdrawn and the matter came before us. 2. The question of law raised in this case is that Section 7 of the Criminal Law Amendment Act, 1932 is ultra vires of the Constitution and the proceedings pending against the petitioner were illegal. Before deciding this question we may briefly mention the acts alleged against the Petitioner which are the subject-matter of this prosecution. 3. The prosecution case is that the petitioner is one of the leaders of the Socialist Party and be distributed about a thousand Printed Pamphlets which bore his signatures inciting the members of his party to do certain acts. From the order of the Magistrate it appears that these acts consisted of a large number of activities. We may cite an extract from the order of the Magistrate which would give an idea of the acts for which an incitement was given in these Pamphlets. The extract runs as follows:- The allegations against the petitioners in this case are that they incited public and party members numbering more than 10 persons to come in thousands and to take possession over Parti land, and to distribute same amongst landless Persons, to surround Tahsils with thousands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any of the acts prohibited by this section is not an offence under this section. 5. The counsel who appeared on behalf of the petitioner contended that the underlined (here into ' ') portions in the Section cited above are ultra vires of the Constitution because they violate the fundamental rights guaranteed to every citizen of India under Article 19 of the Constitution of India. Our attention has been drawn to Sub-clauses (a), (b) and (d) of this Article. We might as well give the relevant Part of Article 19 which runs as follows;- 19. (1) All citizens shall have the right -- (a) to freedom of speech and expression; (b) to assemble peaceably and without arms; (d) to move freely throughout the territory of India. The contention is that the underlined (here into ' ') portions of Section 7 of the Criminal Law Amendment Act restricts these rights and, therefore, it transgreses the constitutional safeguards. We may as well quote Clauses (2), (3) and (5) of Article 19 of the Constitution, for they are to be read along with the rights mentioned in (a), (b) and (d):- (2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be any such thing as absolute or uncontrolled liberty wholly freed from restraint, for that would lead to anarchy and disorder. The possession and enjoyment of all rights, as was observed by the Supreme Court of America in Jacobson v. Massachusetts, (1904) 197 U.S. 11 are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, general order and morals of the community. We have, therefore, to see wether the prohibitions contained in Section 7 of the Criminal Law Amendment Act are reasonable restrictions for the maintenance of public order or they transgress this limit. 6. In approching this question we would first mention that the Criminal Law Amendment Act was passed in the year 1932, many years before the Constitution of India came into existence. If there is any conflict between the provisions of this enactment and the Constitution, it must be held to be void to the extent these provisions are inconsistent with the rights safeguarded by the Constitution under Article 13(1) of the Constitution of India. In order to understand the purpose of placing the Criminal Law Amendment Act on the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his rights in such a manner that this exercise violates the rights of another citizen. The basic principle contained in these rights is contained in the maxim Live and let live . No group or individual can claim that he has a better right to do what he pleases irrespective of the fact that by so doing he is stopping the other from doing what he pleases. We are, therefore, of the opinion that the rights conferred upon the citizen under Article 19 of the Constitution give him the liberty of doing something, but this doing something does not include the right of stopping another from doing what he wants to do. Article 19 does not grant the right to interfere with the liberty of another citizen. Therefore, where the conduct ascribed amounts to an interference with the liberty of another, it is difficult to accept the plea that the offender is only exercising a right which was granted to him under the Constitution. We, therefore, feel that on this basic ground alone the prohibitions contained in Section 1 of the Criminal Law Amendment Act cannot be held to be ultra vires of the Constitution. 9. So far as we are aware, there are only two Bench decisions in which the question which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 7 of the Criminal Law Amendment Act and the middle part of Clause (a) are ultra vires of the Constitution, because under these provisions peaceful picketing is also forbidden. These two decisions were considered by the learned Judges of the Bombay High Court, but they did not agree with the view expressed in these decisions. We also find it difficult to accept the view taken in these two American cases. It is so difficult to apply the rule of law laid down in one country to another country, for conditions of life vary materially and what may not create chaos in one country may do so in the other country. Even in Thornhill's case, (1939) 84 Law Ed 1093 the learned Judge observed: The State urges that the purpose of the challenged statute is the protection of the community from the violence and breaches of the peace, which it asserts, are the concomitants of picketing. The power and the duty of the State to take adequate steps to preserve the peace and to protect the privacy, the lives, and the Property of its residents cannot be doubted. But no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enact restrictions in the terms of Section 7 of the Criminal Law Amendment Act. In all such cases, the presumption should be in favour of the reasonableness of the restriction, although the final decision as to whether it is reasonable or hot must under the Constitution, remain with the Court . If we may say so with respect, we are in entire agreement with the observations made above. In our opinion the analogies of American law cannot be applied to the conditions that exist in this country. Perhaps in the United States picketing has not yet been forged as a weapon to disrupt the administration and paralyse the functioning of the State departments nor has it ever been resorted to 'en masse' on a large scale. We also feel that unless a Court is in a position to determine that the restrictions imposed are definitely unreasonable it is not possible to come to the conclusion that such a law is ultra vires of the Constitution. 12. The Supreme Court in several cases has given a guidance as to how the question should be approached when the constitutionality of an enactment is challenged, We will cite only one extract from Hamdard Dawakhana v. The Union of India, AIR 1960 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of this purpose, we find no disharmony between the Constitution and the Criminal Law Amendment Act. In interpreting the words of a Statute that interpretation which brings about harmony should be preferred. That the State should Prohibit the citizens from creating chaos and anarchy and to that extent limit their liberty must be held to be a reasonable restriction in the interests of the community. Even the alleged peaceful picketing can be a danger to public order when it is resorted to 'en masse' as was conceded even in the American decisions cited above, for 'picketing en masse' cannot be peaceful and it is clearly a coersion exercised by a group upon another group in order to force its will. Only that picketing which is done by a few and which does not go beyond the length of persuasion and inducement and which does not restrain the others from doing what they please can be excepted. Looking closely to the words of Section 7 of the Criminal Law Amendment Act, we would take out the impugned portions and see whether they prohibit any peaceful pursuits. Section 7 of the Criminal Law Amendment Act runs as follows :- (1) (a) Whoever with intent to cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeling of fear or fright and thus deter a person from entering or approaching any place of business, if it is carried on in a particular way or by Persons of particular status, type, persuasion of antecedents, It would, therefore, be seen that plain and simple loitering has not been made Punishable and it is only that loitering which amounts to coercion which has been made an offence. We think the words of Clauses (a) and (b) of Section 7 of the Criminal Law Amendment Act are capable of this interpretation and as this interpretation is not only consistent with the object of the enactment but it also harmonises Section 7 of the Criminal Law Amendment Act with the Constitution, this interpretation should be preferred. Interpreted this way, Section 7 ceases to be an encroachment on any rights but really becomes a safeguard for the protection of those very rights. 14. Even in the American cases the impugned law was held to be void because mere persuasion and inducement could also be made Punishable under that provision. The interpretation which we have put upon the word 'loitering' will not make it possible for the provisions of this Section to be utilized against strictly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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