{"id":29534,"date":"1950-05-26T00:00:00","date_gmt":"1950-05-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/brij-bhushan-and-another-vs-the-state-of-delhi-on-26-may-1950"},"modified":"2019-03-14T06:30:22","modified_gmt":"2019-03-14T01:00:22","slug":"brij-bhushan-and-another-vs-the-state-of-delhi-on-26-may-1950","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/brij-bhushan-and-another-vs-the-state-of-delhi-on-26-may-1950","title":{"rendered":"Brij Bhushan And Another vs The State Of Delhi on 26 May, 1950"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Brij Bhushan And Another vs The State Of Delhi on 26 May, 1950<\/div>\n
Equivalent citations: 1950 AIR 129, \t\t 1950 SCR 605<\/div>\n
Author: S Fazal Ali<\/div>\n
Bench: Fazal Ali, Saiyid<\/div>\n
           PETITIONER:\nBRIJ BHUSHAN AND ANOTHER\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF DELHI.\n\nDATE OF JUDGMENT:\n26\/05\/1950\n\nBENCH:\nFAZAL ALI, SAIYID\nBENCH:\nFAZAL ALI, SAIYID\nKANIA, HIRALAL J. (CJ)\nSASTRI, M. PATANJALI\nMAHAJAN, MEHR CHAND\nDAS, SUDHI RANJAN\nMUKHERJEA, B.K.\n\nCITATION:\n 1950 AIR  129\t\t  1950 SCR  605\n CITATOR INFO :\n R\t    1951 SC 270\t (4)\n RF\t    1952 SC 329\t (3,4)\n RF\t    1957 SC 620\t (3,5,7)\n RF\t    1958 SC 578\t (129,151)\n F\t    1959 SC 395\t (13,40)\n R\t    1960 SC 633\t (9)\n RF\t    1962 SC 305\t (25)\n R\t    1962 SC 955\t (21)\n MV\t    1966 SC 740\t (48)\n RF\t    1967 SC1643\t (227)\n RF\t    1971 SC2486\t (8,13,14)\n E\t    1973 SC 106\t (16)\n RF\t    1986 SC 515\t (22,24,33,97)\n RF\t    1989 SC 190\t (11)\n\n\nACT:\n   Constitution\t of  India,  Art.  19,\tcls.  (1)  (a)\tand\n(2)--Fundamental   right   of\tfreedom\t  of   speech\t and\nexpression--Law\t imposing pre-censorship on  newspapers\t for\nsecuring    public    safety\tand    preventing     public\ndisorder--Validity--Matter   disturbing\t public\t safety\t  or\ncausing\t public disorder, whether \"undermines  the  security\nof,  or tends to over* throw, the State\"--Scope of Art.\t 19,\ncl.  (2)--East\tPunjab Public Safety Act, 1949, sec.  7\t (1)\n(c)--Validity.\n\n\n\nHEADNOTE:\nSection\t 7  (1) (c) of the East Punjab\tPublic\tSafety\tAct,\n1949,  as  extended to the Province of Delhi  provided\tthat\n\"the Provincial Government or any authority authorised by it\nin  this behalf, if satisfied that such action is  necessary\nfor preventing or combating any activity prejudicial to\t the\npublic\tsafety\tor the maintenance of public order  may,  by\norder  in  writing addressed to a a  printer,  publisher  or\neditor require that any matter relating to a\n606\nparticular subject or class of subjects shall before  publi-\ncation be submitted for scrutiny.\"\n    Held  per  KANIA C. J.,  PATANJALI\tSASTRI,\t MEHR  CHAND\nMAHAJAN,  MUKHERJEA  and DAS JJ.--(FAZL ALI  J.\t dissenting)\nthat  inasmuch as s. 7 (1) (c) authorised the imposition  of\nrestrictions  on the fundamental right of freedom of  speech\nand expression guaranteed by art. 19 (1.) (a) of the Consti-\ntution for the purpose of preventing activities\t prejudicial\nto public safety and maintenance of public order, it was not\na law relating to \"a matter which undermines the security of\nor tends to overthrow, the State\" within the meaning of\t the\nsaving\tprovisions contained in cl. (9.) of art. 19 and\t was\ntherefore unconstitutional and void.\nRomesh Thappar v. The State ([1950] S.C.R. 594) followed.\n    Per FAZL ALI J.-- The expression \"public safety\" has, as\na result of a long course of legislative practice acquired a\nwell-recognised meaning and may be taken to denote safety or\nsecurity  of the State; and, though the\t expression  \"public\norder\"\tis  wide enough to cover small disturbances  of\t the\npeace which do not jeopardise the security of the State yet,\nprominence given in the Act to public safety, the fact\tthat\nthe  Act  is a piece of special\t legislation  providing\t for\nspecial measures and the aim and scope of the Act in  gener-\nal, show that preservation of public safety is the  dominant\npurpose\t of  the Act, and \"public order\" may well  be  para-\nphrased\t in  the context as \"public  tranquillity\".   Public\ndisorders which disturb the public tranquillity do undermine\nthe  security  of the State and as s. 7 (1) (c) of  the\t im-\npugned\tAct  is\t aimed at preventing such  disorders  it  is\ndifficult to hold that it falls outside the ambit of art. 19\n(2) of the Constitution.\n    Held  by the Full Court.--The imposition of\t pre-censor-\nship  on  a journal is a restriction on the liberty  of\t the\npress which is an essential part of the right to freedom  of\nspeech\tand expression declared by art. 19  (1)(a).   Black-\nstone's Commentaries referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
ORIGINAL JURISDICTION: Petition No. XXIX of 1950.
\n    Application\t under\tarticle 32 of  the  Constitution  of
\nIndia  for a writ of certiorari and prohibition.  The  facts
\nare stated in the judgment.\n<\/p>\n
    N.C. Chatterjee (B. Banerji, with him) for the petition-
\ner.\n<\/p>\n
    M.C. Setalvad, Attorney-General for India, (S. M. Sikri,
\nwith him) for the respondent.\n<\/p>\n
    1950.  May\t26. The judgment of  Kania  C.J.,  Patanjali
\nSastri, Mehr Chand Mahajan, Mukherjea and Das JJ. was deliv-
\nered by Patanjali Sastri J.\n<\/p>\n
Fazl Ali J. delivered a separate dissenting judgment,
\n607<\/span>
\n    PATANJALI SASTRI J.–This is an application under  arti-
\ncle 32 of the Constitution praying for the issue of writs of
\ncertiorari  and\t prohibition to the  respondent,  the  Chief
\nCommissioner  of Delhi, with a view to examine the  legality
\nof  and quash the order made by him in regard to an  English
\nweekly\tof  Delhi called the Organizer of  which  the  first
\napplicant  is the printer and publisher, and the  second  is
\nthe editor.  On 2nd March, 1950, the respondent, in exercise
\nof powers conferred on him by section 7 (1) (c) of the\tEast
\nPunjab\tPublic Safety Act, 1949, which has been extended  to
\nthe  Delhi  Province and is hereinafter referred to  as\t the
\nimpugned Act, issued the following order:\n<\/p>\n
    “Whereas  the  Chief Commissioner, Delhi,  is  satisfied
\nthat  Organizer, an English weekly of Delhi, has  been\tpub-
\nlishing highly objectionable matter constituting a threat to
\npublic\tlaw  and  order and that action\t as  is\t hereinafter
\nmentioned  is  necessary for the purpose  of  preventing  or
\ncombating activities prejudicial to the public safety or the
\nmaintenance of public order.\n<\/p>\n
    Now\t there more in exercise of the powers  conferred  by
\nsection 7 (1)(c) of the East Punjab Public Safety Act, 1949,
\nas extended to the Delhi Province, I, Shankar Prasad,  Chief
\nCommissioner, Delhi, do by this order require you Shri\tBrij
\nBhushan, Printer and Publisher and Shri K.R. Halkani, Editor
\nof the aforesaid paper to submit for scrutiny, in duplicate,
\nbefore publication, till further orders, all communal matter
\nand news and views about Pakistan including photographs\t and
\ncartoons  other than those derived from official sources  or
\nsupplied  by the news agencies, viz., Press Trust of  India,
\nUnited\tPress  of India and United Press of America  to\t the
\nProvincial Press Officer, or in his absence, to Superintend-
\nent  of Press Branch at his office at 5, Alipur Road,  Civil
\nLines, Delhi, between the hours 10 a.m. and 5 p.m. on  work-
\ning days.”\n<\/p>\n
     The only point argued before us relates to the  consti-
\ntutional  validity of section 7 (1) (c) of the impugned\t Act
\nwhich, as appears from its preamble, was passed “to  provide
\nspecial measures to ensure public safety
\n608<\/span>
\nand  maintenance of public order.”  Section 7 (1) (c)  under
\nwhich  the aforesaid order purports to have been made  reads
\n(so far as material here) as follows :–\n<\/p>\n
    “The Provincial  Government or any authority  authorised
\nby it in this behalf if satisfied that such action is neces-
\nsary for the purpose of preventing or combating any activity
\nprejudicial  to\t the  public safety or\tthe  maintenance  of
\npublic order may, by order in writing addressed to a  print-
\ner, publisher or editor require that any matter relating  to
\na  particular  subject\tor class of  subjects  shall  before
\npublication be submitted for scrutiny.”\n<\/p>\n
    The petitioners claim that this provision infringes\t the
\nfundamental  right to the freedom of speech  and  expression
\nconferred  upon them by article 19 (1) (a) of the  Constitu-
\ntion inasmuch as it authorises the imposition of a  restric-
\ntion  on the publication of the journal which is not  justi-
\nfied under clause (2) of that article.\n<\/p>\n
    There can be little doubt that the imposition of precen-
\nsorship on a journal is a restriction on the liberty of\t the
\npress which is an essential part of the right to freedom  of
\nspeech\tand  expression declared by article 19\t(1)(a).\t  As
\npointed\t out by Blackstone in his Commentaries “the  liberty
\nof  the press consists in laying no previous restraint\tupon
\npublications,  and not in freedom from censure for  criminal
\nmatter when published.\tEvery freeman has an undoubted right
\nto  lay\t what sentiments he pleases before  the\t public;  to
\nforbid this, is to destroy the freedom of the press(1).\t The
\nonly  question therefore is whether section 7  (1)(c)  which
\nauthorises the imposition-of such a restriction falls within
\nthe reservation of clause (2) of article 19.
\n    As\tthis  question\tturns on  considerations  which\t are
\nessentially  the  same\tas those on which  our\tdecision  in
\nPetition No. XVI of 1950(2) was based, our judgment in\tthat
\ncase  concludes the present case also. Accordingly, for\t the
\nreasons\t indicated in that judgment, we allow this  petition
\nand hereby quash the impugned order of the Chief Commission-
\ner, Delhi, dated the 2nd March, 1950.\n<\/p>\n
(1) Blackstone’s Commentaries, Vol. IV, pp. 151, 152.
\n(2) Romesh Thappar v. The State of Madras,<\/a> supra p. 594.\n<\/p>\n
609<\/span><\/p>\n
   FAZL ALI J.–The question raised in this case relates  to
\nthe validity of ‘section 7 (1) (c) of the East Punjab Public
\nSafety\tAct,  1949 (as extended to the Province\t of  Delhi),
\nwhich runs as follows :-\n<\/p>\n
  “The\tProvincial Government or  any  authority  authorised
\nby it in this behalf if satisfied that such action is neces-
\nsary for the purpose of preventing or combating any activity
\nprejudicial  to\t the  public safety or\tthe  maintenance  of
\npublic order, may, by order in writing addressed to a print-
\ner, publisher or editor–\n<\/p>\n
       *      *\t     *\t\t  *\n<\/p>\n
    (c)\t require  that any matter relating to  a  particular
\nsubject\t or  class of subjects shall before  publication  be
\nsubmitted for scrutiny;”\n<\/p>\n
    It should be noted that the provisions of sub-clause (c)
\narc  not in general terms but are confined to a\t “particular
\nsubject or class of subjects,” and that having regard to the
\ncontext in which these words are used, they must be connect-
\ned with “public safety or the maintenance of public order.”\n<\/p>\n
     The  petitioners,\ton whose behalf\t this  provision  is
\nassailed,  are respectively the printer (and publisher)\t and
\neditor of an English  weekly of Delhi  called Organizer, and
\nthey pray for the issue of writs of certiorari and  prohibi-
\ntion  to  the Chief Commissioner, Delhi, with  a  view’\t ‘to
\nexamine\t and review the legality”      of and “restrain\t the
\noperation”  of and “quash” the order made by him on the\t 2nd
\nMarch,\t1950, under the impugned section,   directing\tthem
\n“to  submit for scrutiny, in duplicate, before\tpublication,
\ntill further orders, all communal matter and news and  views
\nabout Pakistan including photographs and cartoons other than
\nthose derived from official sources or supplied by the\tnews
\nagencies…”  The  order  in question  recites\tamong  other
\nthings\tthat the Chief Commissioner is\tsatisfied  that\t the
\nOrganizer  has\tbeen publishing highly objectionable  matter
\nconstituting  a\t threat\t to public law and  order  and\tthat
\naction to which reference has been made is necessary for the
\npurpose\t of preventing\tor  combating  activities
\n610<\/span>
\n    prejudicial\t to the public safety or the maintenance  of
\npublic order.  It is contended on behalf of the\t petitioners
\nthat  notwithstanding  these recitals the  order  complained
\nagainst\t is liable to be quashed, because it amounts  to  an
\ninfringement  of the right of freedom of speech and  expres-
\nsion  guaranteed by article 19 (1) (a) of the  Constitution.
\nArticles 19 (1) (a) and (2), which are to be read  together,
\nrun as follows :-\n<\/p>\n
      19, (1) All citizens shall have the right\n<\/p>\n
(a) to freedom of speech and expression;\n<\/p>\n
   *\t*\t   *\t      *
\n    (2) Nothing in sub-clause (a) of clause (1) shall affect
\nthe  operation of any existing law in so far as\t it  relates
\nto,  or prevent the State from making any law  relating\t to,
\nlibel, slander, defamation, contempt of Court or any  matter
\nwhich  offends against decency or morality or  which  under-
\nmines the security of, or tends to overthrow, the State.”\n<\/p>\n
    It is contended that section 7 (1)(c) of the Act,  under
\nwhich  the impugned order has been made, cannot be saved  by
\nclause\t(2)  of article 19 of the Constitution,\t because  it
\ndoes not relate to any matter which undermines the  security
\nof, or tends to overthrow, the State.  Thus the main  ground
\nof  attack is that the impugned law is an infringement of  a
\nfundamental  right and is not saved by the so-called  saving
\nclause to which reference has been made.\n<\/p>\n
    There can be no doubt that to impose pre-censorship on a
\njournal, such as has been ordered by the Chief\tCommissioner
\nin  this case, is a restriction on the liberty of the  press
\nwhich  is  included in the right to freedom  of\t speech\t and
\nexpression guaranteed by article 19 (1) (a) of the Constitu-
\ntion,  and  the\t only question which we\t have  therefore  to
\ndecide\tis whether clause (2) of article 19 stands  in\t the
\nway of the petitioners.\n<\/p>\n
    The\t East Punjab Public Safety Act, 1949, of which\tsec-
\ntion  7 is a part, was passed by the Provincial\t Legislature
\nin exercise of the power conferred upon it by section 100 of
\nthe Government of India Act, 1935, is
\n611<\/span>
\nread with Entry 1 of List II of the Seventh Schedule to that
\nAct,  which  includes among other  matters  “public  order.”
\nThis  expression in the general sense may be   construed  to
\nhave reference to the maintenance of what is generally known
\nas  law and order in the Province, and this is confirmed  by
\nthe  words which follow it in Entry 1 of List II  and  which
\nhave been put within brackets, viz., “but not including\t the
\nuse  of\t naval, military or air forces or  any\tother  armed
\nforces of the Union in aid of the civil power.”\t It is clear
\nthat  anything which affects public tranquillity within\t the
\nState or the Province will also affect public order and\t the
\nState  Legislature is therefore competent to frame  laws  on
\nmatters\t relating to public tranquillity and  public  order.
\nIt was not disputed that under the Government of India\tAct,
\n1935  (under, which the impugned Act was passed) it was\t the
\nresponsibility\tof each Province to deal with all   internal
\ndisorders  whatever their magnitude may be and\tto  preserve
\npublic tranquillity and order within the Province.
\n    At\tthis  stage, it will be convenient to  consider\t the
\nmeaning of another expression “public safety” which is\tused
\nthroughout the impugned Act and which is also chosen by\t its
\nframers for its title.\tThis expression, though it has\tbeen
\nvariously used in different contexts (see the Indian   Penal
\nCode,  Ch. XIV), has now acquired a well-recognized  meaning
\nin relation to an Act like the impugned Act, as a result  of
\na  long course of legislative practice, and may be taken  to
\ndenote\tsafety or security of the State.  In this sense,  it
\nwas  used in the Defence of the Realm  (Consolidation)\tAct,
\n1914,  as well as the Defence of India Act. and this is\t how
\nit was judicially interpreted in Rex v. Governor of Wormwood
\nScrubbs Prison(1). The headnote of this case runs as follows
\n   “By section 1 of the Defence of the Realm (Consolidation)
\nAct, 1914, power was given to His Majesty in Council ‘during
\nthe  continuance  of  the  present  war\t to  issue   regula-
\ntions\t……\tfor securing the public safety and  the\t de-
\nfence of the realm’ :–\n<\/p>\n
(1) [1920] 2 K.B. 305.\n<\/p>\n
612<\/span><\/p>\n
    Held,  that the regulations thereby authorized were\t not
\nlimited\t to  regulations for the protection of\tthe  country
\nagainst\t foreign enemies, but included regulations  designed
\nfor the prevention of internal disorder and rebellion ”\n<\/p>\n
    Thus  ‘public  order’  and ‘public\tsafety’\t are  allied
\nmatters,  but,\tin  order to appreciate how  they  stand  in
\nrelation  to each other, it seems best to direct our  atten-
\ntion to the opposite concepts which we may, for\t convenience
\nof  reference, respectively label as ‘public  disorder’\t and
\n‘public unsafety’.  If ‘public safety’ is, as we have  seen,
\nequivalent to ‘security of the State’, what I have designat-
\ned  as\tpublic\tunsafety may be regarded  as  equivalent  to
\n‘insecurity  of the State’. When we approach the  matter  in
\nthis  way,  we\tfind that while ‘public\t disorder’  iS\twide
\nenough\tto cover a small riot or an affray and\tother  cases
\nwhere  peace is disturbed by, or affects, a small  group  of
\npersons,  ‘public  unsafety’ (or insecurity of\tthe  State),
\nwill  usually be connected with serious\t internal  disorders
\nand  such disturbances of public tranquillity as  jeopardize
\nthe security of the State.\n<\/p>\n
    In order to understand the scope of the Act, it will  be
\nnecessary  to  note that in the Act “maintenance  of  public
\norder” always occurs in juxtaposition with “public  safety”,
\nand the Act itself is called “The East Punjab Public  Safety
\nAct.”  The prominence thus given to ‘public safety’ strongly
\nsuggests  that\tthe Act was intended to\t deal  with  serious
\ncases  of public disorder which affect public safety or\t the
\nsecurity of the State, or cases in which, owing to some kind
\nof emergency or a grave situation having arisen, even public
\ndisorders  of comparatively small dimensions may  have\tfar-
\nreaching effects on the security of the State.\tIt is to  be
\nnoted that the Act purports to provide “special measures  to
\nensure public safety and maintenance of public order.”\t The
\nwords “special measures” are rather important, because\tthey
\nshow  that  the Act was not intended for ordinary  cases  or
\nordinary situations.  The ordinary cases are provided for by
\nthe Penal Code and other existing laws, and
\n613<\/span>
\nwith  these the Act which purports to be of a temporary\t Act
\nis  not apparently concerned.  It is concerned with  special
\nmeasures  which\t would presumably be  required\tfor  special
\ncases or  special  situations.\tOnce this important fact  is
\ngrasped\t and  the Act is viewed in the\tproper\tperspective,
\nmuch  of the confusion which has been created in the  course
\nof  the\t arguments  will disappear.  The  line\tof  argument
\nadvanced on behalf of the petitioners is that since the\t Act
\nhas  been  passed in exercise of the power  granted  by\t the
\nexpression  “public order,” used in the Government of  India
\nAct,  which is a general term of wide import, and  since  it
\npurports  to provide for the maintenance of   public  order,
\nits provisions are intended or are liable to be used for all
\ncases  of breaches of public order, be they small or  insig-
\nnificant  breaches  or those of a grave or  serious  nature.
\nThis  is, in my opinion, approaching the case from  a  wrong
\nangle.\tThe Act is a piece of special legislation  providing
\nfor  special measures and the central idea dominating it  is
\npublic safety and maintenance of public order in a situation
\nrequiring special measures.\n<\/p>\n
    It\twas argued that “public safety” and “maintenance  of
\npublic order” are used in the Act disjunctively and they are
\nseparated  by the word “or” and not “and,” and therefore  we
\ncannot\trule  out the possibility of the Act  providing\t for
\nordinary  as well as serious cases of disturbance of  public
\norder and tranquillity.\t This, as I have already  indicated,
\nis a somewhat narrow and technical approach to the question.
\nIn  construing\tthe Act, we must try to get at its  aim\t and
\npurpose,  and before the Act is declared to be\tinvalid,  we
\nmust  see whether it is capable of being so construed as  to
\nbear  a reasonable meaning consistent with its validity.  We
\ntherefore cannot ignore the fact that preservation of public
\nsafety\tis the dominant purpose of the Act and that it is  a
\nspecial Act providing for special measures and therefore  it
\nshould\tnot be confused with an Act which is  applicable  to
\nordinary  situations  and to any and every trivial  case  of
\nbreach of public order,
\n614<\/span>
\nIn  my\topinion, the word “or” is used here not so  much  to
\nseparate two wholly different concepts as to show that\tthey
\nare  closely allied concepts and can be used  almost  inter-
\nchangeably in the context.  I think that “public order”\t may
\nwell  be paraphrased in the context as\tpublic\ttranquillity
\nand the words “public safety” and “public order” may be read
\nas  equivalent to “security of the State” and “public  tran-
\nquillity.”\n<\/p>\n
    I will now advert once more to clause (2) of article  19
\nand state what I consider to be the reason for inserting  in
\nit  the words “matter which undermines the security  of,  or
\ntends  to overthrow, the State.”  It is well  recognized  in
\nall  systems of law that the right to freedom of speech\t and
\nexpression or freedom of the press means that any person may
\nwrite or say what he pleases so long as he does not infringe
\nthe  law  relating to libel or slander\tor  to\tblasphemous,
\nobscene or seditious words or writings: (see Halsbury’s Laws
\nof England, 2nd Edition, Vol. II, page 391).  This is  prac-
\ntically what has been said in clause (2) of article 19, with
\nthis  difference only that instead of using the\t words\t“law
\nrelating to sedition,” the framers of the Constitution\thave
\nused  the words mentioned above. It is interesting  to\tnote
\nthat  sedition\twas mentioned in the original draft  of\t the
\nConstitution, but subsequently that word was dropped and the
\nwords which I have quoted were inserted.  I think it is\t not
\ndifficult to discover the reason for this change and I shall
\nbriefly state in my own words what I consider it to be.\n<\/p>\n
     The latest pronouncement by the highest Indian tribunal
\nas to the law of sedition is to be found in  Niharendu\tDutt
\nMajumdar   v.  The King(1) which has been quoted  again\t and
\nagain  and in which Gwyer C.J. laid down that public  disor-
\nder, or the reasonable anticipation or likelihood of  public
\ndisorder,  is the gist of the offence of sedition  and\t“the
\nacts  or words complained of must either incite to  disorder
\nor
\n(1) [1942] F.C.R. 38.\n<\/p>\n
615<\/span><\/p>\n
must  be  such as to satisfy reasonable men  that  is  their
\nintention or tendency.”\t For this  view,  the learned  Chief
\nJustice\t relied on certain observations of Fitzgerald J.  in
\nR.v. Sullivan (1), and he also added that he was content  to
\nadopt\t“the words of that  learned Judge which\t are  to  be
\nfound in every book dealing with this branch of the criminal
\nlaw.”  There is no doubt that what Gwyer C.J. has stated  in
\nthat  case  represents the view of a number  of\t Judges\t and
\nauthors and was also the view of Sir James Stephen in regard
\nto whom Cave J. in his charge to the jury in a case relating
\nto the law of sedition JR. v. Burns(2) said :–\n<\/p>\n
    “The law upon the question of what is seditious and what
\nis  not\t is  to be found stated very clearly in\t a  book  by
\nStephen J. who has undoubtedly a greater knowledge of crimi-
\nnal  law than any other Judge who sits upon the\t Bench,\t and
\nwhat he has said upon the subject of sedition was  submitted
\nto the other Judges, who sometime back were engaged with him
\nin  drafting  a\t criminal code, and upon  their\t report\t the
\nCommissioners say that his statement of law appears to\tthem
\nto be stated accurately as it exists at present.”\n<\/p>\n
    The decision of  Gwyer C.J. held  the field\t for several
\nyears until the Privy Council, dealing with a case under the
\nDefence of India Rules, expressed the view  in\tKing  Emper-
\nor   v.\t Sadhashiv  Narayan Bhalerao(3) that the  test\tlaid
\ndown  by  the learned Chief Justice was\t not  applicable  in
\nIndia  where  the offence under section 124A of\t the  Indian
\nPenal  Code should be construed with reference to the  words
\nused in that section.  They also added :–\n<\/p>\n
    “The  word ‘sedition’ does not occur either\t in  section
\n124A or in the Rule; it is only found as a marginal note  to
\nsection\t 124A, and is not an operative part of the  section,
\nbut  merely provides the name by which the crime defined  in
\nthe section will be known.\n<\/p>\n
(1) [1868] 11 Cox c.c. 44.   (2) [1886] 16 cox 855.  (8)  74
\nI.A.\n<\/p>\n
616<\/span><\/p>\n
There  can be no justification for restricting the  contents
\nof the section by the marginal note.  In England there is no
\nstatutory  definition of sedition; its meaning\tand  content
\nhave  been  laid down in many decisions, some of  which\t are
\nreferred  to by the Chief Justice, but these  decisions\t are
\nnot  relevant when you have  a statutory definition of\tthat
\nwhich is termed sedition as we have in the present case.
\n    Their  Lordships  are  unable to find  anything  in\t the
\nlanguage  of  either section 124A or the  Rule\twhich  could
\nsuggest\t that ‘the acts or words complained of\tmust  either
\nincite\tto disorder or must be such as to satisfy reasonable
\nmen that this is their intention or tendency.”\n<\/p>\n
    The\t framers  of the Constitution  must  have  therefore
\nfound themselves face to face with the dilemma as to whether
\nthe word “sedition” should be used in article 19 (2) and  if
\nit  was to be used in what sense it was to be used.  On\t the
\none  hand,  they must have had before their  mind  the\tvery
\nwidely accepted view supported by numerous authorities\tthat
\nsedition was essentially an offence against public tranquil-
\nlity  and  was connected in some way or\t other\twith  public
\ndisorder;  and, on the other hand, there was the  pronounce-
\nment  of the Judicial Committee that sedition as defined  in
\nthe  Indian Penal Code did not necessarily imply any  inten-
\ntion or tendency to incite disorder. In these circumstances,
\nit  is not surprising that they decided not to use the\tword
\n“sedition”  in\tclause (2) but used the more  general  words
\nwhich  cover sedition and everything else which makes  sedi-
\ntion such a serious offence.  That sedition  does  undermine
\nthe security of the State is a matter which cannot admit  of
\nmuch  doubt.  That it undermines the security of  the  State
\nusually\t through  the medium of public disorder\t is  also  a
\nmatter\ton  which  eminent Judges and  jurists\tare  agreed.
\nTherefore  it is difficult to hold that public\tdisorder  or
\ndisturbance  of\t public tranquillity are not  matters  which
\nundermine the security of the State.\n<\/p>\n
617<\/span><\/p>\n
    It will not be out of place to quote here the  following
\npassage from Stephen’s Criminal Law of England (Vol. II, pp.
\n242 and 243) :–\n<\/p>\n
    “It\t often\thappens, however, that the public  peace  is
\ndisturbed  by offences which without tending to the  subver-
\nsion  of  the existing\tpolitical  constitution\t practically
\nsubvert\t the authority of  the Government over a greater  or
\nless  local area for a longer or shorter time.\tThe  Bristol
\nriots  in  1832 and the Gordon riots in\t 1780 are  instances
\nof this kind. No definite line\tcan be drawn between  insur-
\nrections of this sort, ordinary\t riots, and unlawful  assem-
\nblies.\tThe  difference between a meeting stormy  enough  to
\ncause  well-founded  fear of a breach of the  peace,  and  a
\ncivil war the result of which may determine the course of  a
\nnation’s  history for centuries, is a difference of  degree.
\nUnlawful   assemblies,\triots,\tinsurrections,\t rebellions,
\nlevying of war, are offences which run into each other,\t and
\nare  not capable of being marked off by\t perfectly  definite
\nboundaries, All of them have in common one feature,  namely,
\nthat  the normal tranquillity of a civilised society  is  in
\neach of the cases mentioned disturbed either by actual force
\nor at least by the show and threat of it.\n<\/p>\n
    Another  class of offences against\tpublic\ttranquillity
\nare  those  in which no actual force is either\temployed  or
\ndisplayed, but in which steps are taken tending to cause it.
\nThese  are  the\t formation of  secret  societies,  seditious
\nconspiracies, libels or words spoken.\n<\/p>\n
    Under these two heads all offences against the  internal
\npublic\ttranquillity  of  the  State may  be arranged.”\n<\/p>\n
    This  passage  brings out two  matters  with  remarkable
\nclarity.   It shows firstly that sedition is essentially  an
\noffence\t  against   public  tranquillity and  secondly\tthat
\nbroadly\t speaking there are two classes of offences  against
\npublic\ttranquillity:  (a)  those  accompanied\tby  violence
\nincluding  disorders which
\n618<\/span>
\naffect\ttranquillity of a considerable number of persons  or
\nan  extensive local area, and (b) those not  accompanied  by
\nviolence  but tending to cause it, such as seditious  utter-
\nances,\tseditious conspiracies, etc. Both these\t classes  of
\noffences  are  such as will undermine the  security  of\t the
\nState  or tend to overthrow it if left unchecked, and, as  I
\nhave tried to point out, there is a good deal of  authorita-
\ntive opinion in favour of the view that the gravity ascribed
\nto  sedition is due to the fact that it tends  to  seriously
\naffect\tthe  tranquillity  and security of  the\t State.\t  In
\nprinciple, then, it would not have been logical to refer  to
\nsedition in clause (2) of article 19 and omit matters  which
\nare  no\t less grave and which have  equal  potentiality\t for
\nundermining the security of the State.\tIt appears that\t the
\nframers\t of the Constitution preferred to adopt the  logical
\ncourse and have used the more general and basic words  which
\nare apt to cover sedition as well as other matters which are
\nas detrimental to the security of the State as sedition.
\n    If\tthe Act is to be viewed as I have suggested,  it  is
\ndifficult  to hold that section 7 (1) (c) falls outside\t the
\nambit  of  article 19 (2). That clause clearly\tstates\tthat
\nnothing in clause (1) (a) shall affect the operation of\t any
\nexisting  law  relating to any matter which  undermines\t the
\nsecurity of, or tends to overthrow, the State.\tI have tried
\nto  show that public disorders\tand disturbance\t of   public
\ntranquillity   do undermine the\t security of  the State\t and
\nif  the Act is a law aimed at preventing such disorders,  it
\nfulfils the requirement of the Constitution.  It is needless
\nto add that the word “State” has been defined in article  12
\nof  the Constitution to include “the Government and  Parlia-
\nment of India and the Government and Legislature of each  of
\nthe  States  and all local or other authorities\t within\t the
\nterritory of India or under the control of the Government of
\nIndia.”\n<\/p>\n
    I find that section 20 of the impugned Act provides that
\nthe Provincial Government may by notification
\n619<\/span>
\ndeclare that the whole or any part of the Province as may be
\nspecified  in  the notification is a  dangerously  disturbed
\narea.  This provision has some bearing on the aim and object
\nof  the Act, and we cannot overlook it when considering\t its
\nscope.\t It may be incidentally mentioned that we have\tbeen
\ninformed  that, under this section, Delhi Province has\tbeen
\nnotified to be a “dangerously disturbed area.”\n<\/p>\n
    It must be recognized that freedom of speech and expres-
\nsion  is  one of the most valuable rights guaranteed  to   a
\ncitizen by the\tConstitution and should be jealously  guard-
\ned  by\tthe Courts.  It must also be  recognised  that\tfree
\npolitical discussion is essential for the proper functioning
\nof  a  democratic  government, and the\ttendency  of  modern
\njurists\t is  to deprecate censorship though they  all  agree
\nthat  “liberty of the press” is not to be confused with\t its
\n“licentiousness.”   But\t the Constitution  itself  has\tpre-
\nscribed\t certain limits for the exercise of the\t freedom  of
\nspeech and expression and this Court is only called upon  to
\nsee whether a particular case comes within those limits.  In
\nmy  opinion,  the law which is impugned is  fully  saved  by
\narticle 19 (2) and if it cannot be successfully assailed  it
\nis  not possible to grant the remedy which  the\t petitioners
\nare seeking here.\n<\/p>\n
    As has been stated already, the order which is  impugned
\nin  this  case recites that the weekly\tOrganizer  has\tbeen
\npublishing highly objectionable matter constituting a threat
\nto  public  law and order” and that the action which  it  is
\nproposed  to take against the petitioners “is necessary\t for
\nthe  purpose of preventing or combating activities  prejudi-
\ncial  to public safety or the maintenance of public  order.”
\nThese facts are supported by an affidavit sworn by the\tHome
\nSecretary  to the Chief Commissioner, who also states  among
\nother  things that the order in question was passed  by\t the
\nChief  Commissioner  in consultation with the Central  Press
\nAdvisory Committee, which is  an independent body elected by
\nthe All-India Newspaper Editors’ Conference and is  composed
\nof
\n620<\/span>
\nrepresentatives\t of some of the leading papers such  as\t The
\nHindustan Times, Statesman, etc.  In my\t opinion, there\t can
\nbe no doubt that the Chief Commissioner has purported to act
\nin this case within the sphere within which he is  permitted
\nto  act\t under the law, and it is beyond the power  of\tthis
\nCourt to grant the reliefs claimed by the petitioners.
\n    In these circumstances, I would dismiss the petitioners’
\napplication.\n<\/p>\n
Petition allowed.\n<\/p>\n
Agent for the petitioners: Ganpat Rai.\n<\/p>\n
Agent for the respondent: P.A. Mehta.\n<\/p>\n
621<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Brij Bhushan And Another vs The State Of Delhi on 26 May, 1950 Equivalent citations: 1950 AIR 129, 1950 SCR 605 Author: S Fazal Ali Bench: Fazal Ali, Saiyid PETITIONER: BRIJ BHUSHAN AND ANOTHER Vs. RESPONDENT: THE STATE OF DELHI. DATE OF JUDGMENT: 26\/05\/1950 BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-29534","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBrij Bhushan And Another vs The State Of Delhi on 26 May, 1950 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/brij-bhushan-and-another-vs-the-state-of-delhi-on-26-may-1950\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Brij Bhushan And Another vs The State Of Delhi on 26 May, 1950 - 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