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TMI Blog1950 (5) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of public order, it is necessary so to do, hereby prohibits, with effect on and from the date of publication of this order in the Fort St. George Gazette the entry into or the circulation, sale or distribution in the State of Madras or any part thereof of the newspaper entitled Cross Roads an English weekly published at Bombay. 2. The petitioner claims that the said order contravenes the fundamental right of the petitioner to freedom of speech and expression conferred on him by article 19(1)(a) of the Constitution and he challenges the validity of section 9(1-A) of the impugned Act as being void under article 13(1) of the Constitution by reason of its being inconsistent with his fundamental right aforesaid. 3. The Advocate-General of Madras appearing on behalf of the respondents raised a preliminary objection, not indeed to the jurisdiction of this Court to entertain the application under article 32, but to the petitioner resorting to this Court directly for such relief in the first instance. He contended that, as a matter of orderly procedure, the petitioner should first resort to the High Court at Madras which under article 226 of the Constitution has concurrent ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value . Ex parte Jackson 96 U.S. 727. See also Lovell v. City of Griffin 303 U.S. 444. It is therefore perfectly clear that the order of the Government of Madras would be a violation of the petitioner's fundamental right under article 19(1)(a), unless section 9(1-A) of the impugned Act under which it was made is saved by the reservations mentioned in clause (2) of article 19 which (omitting immaterial words regarding laws relating to libel, slander, etc., with which we are not concerned in this case) saves the operation of any existing law in so far as it relates to any matter which undermines the security of, or tends to overthrow, the State. The question accordingly arises whether the impugned Act, in so far as it purports by section 9(1-A) of to authorise the Provincial Government for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents is a law relating to any matter wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sense, anything which tends to prevent dangers to public health may also be regarded as securing public safety. The meaning of the expression must, however, vary according to the context. In the classification of offence in the Indian Penal Code, for instance, Chapter XIV enumerates the offences affecting the public health, safety, convenience, decency, and, morals and it includes rash driving or riding on a public way (section 279) and rash navigation or a vessel (section 280), among others, as offences against public safety, while Chapter VI lists waging war against the Queen (section 121) sedition (section 124-A) etc. as offences against the State , because they are calculated to undermine or the security of the State, and Chapter VIII defines offences against the public tranquillity which include unlawful assembly (section 141) rioting (section 146), promoting enmity between classes (section 153-A), affray (section 159) etc. Although in the context of a statute relating to law and order securing public safety may not include the securing of public health, it may well mean securing the public against rash driving on a public way and the like, and not necessarily the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences against public order, the difference between them being only a difference of degree, yet for the purpose of grading the punishment to be inflicted in respect of them they may be classified into different minor categories as has been done by the Indian Penal Code. Similarly, the Constitution, in formulating the varying criteria for permissible legislation imposing restrictions on the fundamental rights enumerated in article 19(1), has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it, and made their prevention the sole justification for legislative abridgement of freedom of speech and expression, that is to say, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the right of peaceable assembly sub-clause (b) and the right of association sub-clause (c) may be restricted under clauses (3) and (4) of article 19 in the interests of public order , which in those clauses includes the security of the State. The differentiation is also noticeable in Entry 3 of List III (Concur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible. A freedom of such amplitude might involve risk of abuse. But the framers of the Constitution may well have reflected, with Madison who was the leading spirit in the preparation of the First Amendment of the Federal Constitution, that it is better to leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those yielding the proper fruits : [Quoted in Near v. Minnesotta 282 U.S. 607, 717-8. 10. We are therefore of opinion that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the State or the overthrow of it, such law cannot fall within the reservation under clause (2) of article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It follows that section 9(1-A) which authorises imposition of restrictions for the wider purpose of securing public safety or the maintenance of public orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not. I have borrowed the words quoted within inverted commas from the preamble of the Act which shows its scope and necessity and the question raised before us attacking the validity of the Act must be formulated in the manner I have suggested. If the answer to the question is in the affirmative, as I think it must, be then the impugned law which prohibits entry into the State of Madras of any document or class of documents for securing public safety and maintenance of public order should satisfy the requirements laid down in article 19(2) of the Constitution. From the trend of the arguments addressed to us, it would appear that if a document is seditious, its entry could be validly prohibited, because sedition is a matter which undermines the security of the State; but if, on the other hand, the document is calculated to disturb public tranquillity and affect public safety, its entry cannot be prohibited, because public disorder and disturbance of public tranquillity are not matters which undermine the security of the State. Speaking for myself, I cannot understand this argument. In Brij Bhushan and Another v. The State [1950] S.C.R. 605, I have quoted good authority to show tha ..... 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