K.A. Mohamad Khan and Another vs State of Kerala

P. Govinda Menon, J.—This revision petition Is filed by tem accused who were convicted by the Su&-Divislonal Magistrate of with u/s 31(5) of the Travancore-Coctiin public sateiyi Measures Act � Act V of 19M (hereinafter referred to as the Act).

The second accused is the Editor and printer of a Malayalam daily called Manama'' puniisned from'' Ernakulam and accused No. 1 is the Always correspondent ot the paper. In the issue of the paper dated 26tn August 1960 a report sent by the first accused was publisned ore the front page under the caption

Suicide due to police torture. Peoples'' rage against the devilish activities of the Alwaye police.

The substance of the report is that on 23-8-1960 one mazdoor by name parasukutty, who is working in tne-Alwaye Railway Station, was taken at night to the Agway'' police station and subjected to severe torture, that he was released the next day and that in the afternoon of that day the police again came in search of the mozaoor that on seeing the police the mazaoor ran in followed by the police and being afraid of police and to escape from their ciutcnes the mazaoor jumped in irom of a running train, was run over and killed. The prosecution alleged that the allegation contained In the report is absolutely false and baseless and the publication of the report amounts to a ''prejudicial act'' and ''prejudicial report1 as defined in Section 2 and is an oftence pumsnaoie u/s 31(5) of the Act.

That the report was sent by the tirst accused and that it was published by the second accused in the paper is amply proved and has been admitted by the accuse. When questioned u/s 342 Cr. P. C, the first accused stated that the report is, in fact, true and the secono. accused stated that it was published bona fide believing that the report is true. The defence examined witnesses to prove that the report is true. The learned Magistrate on a consideration of the evidence came to the conclusion mat It was a false report and would amount to a ''prejudicial report'' and convicted the accused u/s 31(5) of the Act. The learned Sessions Judge of trnakuiam on a reappraisal of the evidence, in appeal, came to the same conclusion that the report was false. Me negatived the contention of the learned Counsel for the defence that Section 31(5) of the Act was ultra vires and confirmed the conviction and sentence. Aggrieved by the order the accused has come up In revision.

learned Counsel for the petitioners contend mat Section 31(5) under which the accused have been convicted is ultra vires and void as the section Imposes arbitrary and unreasonable restrictions on the fundamental rignts conferred on the petitioners by Article 19(1)(a) of the constitution, namely, the freedom of speech and expression and are therefore void under Article 13(1) of We constitution. Learned Advocate-General, appearing for the state, on the other hand contends mat the legislature can make laws placing reasonable restrictions on the rignts of citizens to freedom or speech and expression in the interests of public order and the validity of the impugned Act must of tested by the provisions of Article 19(2) of the constitution. we will, therefore, read the relevant articles. Article u reads:

(1) All laws In force in the territory of inaia immediately before the commencement of this constitution, in so far as they are inconsistent with the provisions of this part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

xx xx xx xx xx The impugned Act � Act V of 1950 � was enacted on 30-3-1950. Clause (2) of Article 13 provides that any law made by any legislature after the commencement of the constitution which contravenes any of the fundamental rights included in Part 111 of the Constitution shall, -to the extent of the contravention be void.

Now we will go to Article 19. Article 19 reads: "(1) All citizens shall nave the right-

(a) to freedom of speech and expression;

xx xx xx xx xx (2) Nothing In sub-clause (a) of Clause (1) shall afreet the operation of any existing law, or prevent the state from making any law, m so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause In the Interests of the security of the state, friendly relations with foreign states, public order, decency or morality, or in reianon to contempt of Court, defamation or incitement to an offence,

xx xx xx xx xx This freedom guaranteed Under Clause (1)(a) is the rigm to express one''s convictions and opinions freely, Dy woro of mouth, writing, printing, picture or in any other manner. It would thus Include not only the freedom of press, dux the expression of one''s ideas by any visible representations, such as by gesture and the like. ''Expression1, naturally, presupposes a second party to whom the ideas are expressed or communicated. In short, freedom of expression includes the freedom of propagation of ideas, their publication and circulation.

Clause (2) as amended by the constitution amendment Act 1951, enables the legislature to Impose-'' restrictions upon the freedom of speech and expression. ''Public Order'' referred to in Clause (2) was introduced to meet the situation arising from the Supreme Court''s decision in Romesli rnappar v. State of Madras as 1950 SC 124 and of Bnusnan v. state of Demiaik 1950 sc 129 which laid down that ordinary or local public order were no grounds for restricting the treeaont of speech guaranteed by the Constitution. Presumably In an attempt to get over the effect of the supreme count decisions, the expression ''public order was inserted in-Art. 19(2) with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions Under Clause (2).

As to what is in "interest of public order1 has-been considered in various decisions of the supreme Court. Learned Advocate-General referred us to two decisions, in Ramji Lal Modi v. State of U. P. (S) AIR SC 620 Das, C. J., stated:

It will be noticed that the language employed lit'' the amended clause is "in the interests of" and not "for the maintenance of". As one of us pointed out Debi Soren and Others Vs. The State, the expression "in the interests of" makes the ambit of the protection very wide. A law may not have been designed to directly maintain public order and yet it may have-been enacted In the interests of public order.

The argument in that case was that Section 295A of the Penal Code which deals with offences relating to religion have no bearing on the maintenance of public order or tranquillity and consequently a law creating an ottence relating to religion and imposing restrictions on me right to freedom of speech and expression cannot claim the protection of Clause (2) of Article 19. The learned cnier Justica referred to Articles 25 and 26 of the Constitution and said that the right to freedom of religion assured by those Articles is expressly made subject to puDiic order, morality and health and tneretore it cannot the predicated that freedom of religion can have no oearing whatever on the maintenance of public order or that a law -creating an offence relafmg to religion cannot under any circumstances be said to have been enacted in the interests of public order.

The next case Is Virendra Vs. The State of Punjab and Another, where the learned Chief justice agairr observed much to the same effect:

As has been explained by this Court in AIR SC 620, the words "in the interests of" are words or-great amplitude and are much wider than the woos for the maintenance of. me expression "in the interests of" makes the ambit of the protection very wide for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and'' yet it may nave been enacted "in the interests of" the public order or the general public as the case may be.

learned Counsel for the petitioner argues that though this Act might have been enacted in the interests ct public order it takes within its ambit the puohcation of all reports, both true and false and therefore the section imposes not merely restrictions on but total promotion against the exercise of the fundamental rights and ere not saved by the protective provisions embodied in Article 19(2). In other words the contention is that where a law purports as the Impugned section does, to authorise trie imposition of restriction on the exercise of the influential rights to freedom of speech and expression in language wide enough to cover restrictions Doth wimp end without the limitation of constitutionally permissiDie legislative action affecting such right, the court snoum not uphold it even in so far as It, may be applied within the constitutionally permissible limits as it Is not severa-eie, learned Counsel, therefore, urged that so long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, It must be field to be wholly unconstitutional and void.

Reference was made to the principles enunciated in we case In Chintaman Rao v. State of M. P. AIR SG 118 that it the language employed in the impugned law is wide enough to'' cover restriction both within and outside thru limits to constitutionally permissiDie legislative action affecting the guaranteed fundamental rights and so long as the possibility of the statute being appnea for purposes not sanctioned by the constitution cannoi tie ruled out, the sections must be struck down as ultra vires the Constitution.

We do not think that these principles have any application in the litStant case. It will be remembered that Article 19(2) as it was then worded gave protection to a law (elating to any matter which undermined the security of or tended to overthrow the state. Section 9 (1-A) of the Madras Maintenance of Public Order was made for the purpose of securing public safety and the maintenance of puouc order.

This consideration cannot apply to the case now under consideration. Article 19(2) has been amended so as to extend its protection to a law imposing reasonable restrictions In We interests of public order and the language used in the Impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purpose.

The next case to which reference was made by the learned Counsel or the petitioner is the decision in The Superintendent, Central Prison, Fatehgarh Vs. Dr. Ram Manohar Lohia, . subba nao, j., dealing with the case in (S) Ramji Lal Modi Vs. The State of U.P., and Virendra Vs. The State of Punjab and Another, stated that the observations in tnose cases cannot be taken to mean that any remote or tancirui connection between the Impugned Act and the public order would be sufficient to sustain its validity.

The learned Judge referred to the Full Bench decision of the Federal Court in Rex v. Basudeva AIR 1950 FC 67 where Patanjali Sastri, J., .as he then was, pointed out at page 69:

Activities such as these are so remote in the chain ot relation to the maintenance of public order that pre-wentive detention on account of them cannot in our opinion, fall within the purview of Entry I of list.... The connection contemplated must in our view, be reai and proximate, not tar-tetched or probiemancal.

The learned Judge then referred to Section 3 of the impugned Act � The U.P. special Powers Act, 1932 � under which Dr. Ram Manohar Loiila was prosecuted and anaiys-Ing the section observed Watt under this section a wide net has been cast to catch in a variety of acts of instigation ranging from friendly advice to a systematic propaganda not to pay or to deter payment of liaDiniy to bov-ernment or, any authority or to any person to whom reni Is payable in respect of agricultural land, and in its wide amplitude the section takes in the innocent and the guilty persons, bona fide and mala fide advice, individuals and class, abstention from payment and deferment of payment, expressed or implied instigation, indirect or aireci instigation, liability due not only to Government But to any authority or landholder.

His Lordship stated that in short, no person, whether legal adviser or a friend or a well Wisner of a person instigated can escape the tentacles of this section, though in fact, the rent due has been collected trough coercive process or otherwise. His Lordsmp, tnerenire, held that the limitation imposed in the interest of pudlic order, to be a reasonable restriction, should be one which has a proximate connection or nexus with puisne order But not one tar-tetcned, hypothetical or problematical or too more in the chain of its relation with the public order.

It is not seriousiy contended that in this case inert is no proximate connection between the action complained against and public order. It is also not disputed wi the report that was published is likely to incite public to violence and have a tendency to create public disorder. But what Is complained against by the learned Counsel is that the term ''prejudicial report'' would take in reports true as well as false and in fact any person wno gives a factual account of a true occurrence can also be roped In under the provisions of this section ana the constitutional validity of the section cannot be maoe to depend upon such an uncertain factor and therefore ''l cannot be considered to be a reasonable restriction under Article 19(2).

Learned Advocate-General argued that a close scrutiny of the relevant provisions would show that the acts that would come in under the penai provision or the Act are publication of false reports and rumours and that it was never intended1 that true and factual reports should be brought in within the ambit of the section. Chapter III of the Act deals with public safety and it is in this chapter that Section 31 occurs, what is maae punishable is doing of prejudicial act or pubijsning ot prejudicial icpcrt. The prejudicial report must be one the publishing of which is or is an incitement to ins commission of a prejudicial act and to become a prejudicial act there must be dissemination of a false rumour, report or information. Thus carefully analysed it is clear that wnat is made punishable is only publishing, a false rurcwir or report or information. While construing the statute a reasonable meaning has to be ass''gned to words used navy due regard to the context in they are used and tne object of the Act.

Now even assuming that it could be argued tnai We section can refer to a true report also as contended by the learned Counsel the entire section cannot be declared to be unconstitutional. Article 13(1) of the constitution says that ail laws in so far as they are inconsistent with we provisions of Part 3 are void only to me extent or such inconsistency and so We law to trie extent that it can Impose reasonable restriction cannot be neia to be void.

In this connection learned Advocate-General reterrea to the decision in Cnamarbaugwaiia v. union of India (j) AIR 1957 SC 6 ZH. in that case the constitutionality of Sections 4 and 5 of the Prize Competitions Act 142 of 1955) was challenged on the ground that ''prize competition1 as defined in Section 2(d) of the Act included not merely competitions that were of a gambling nature but also those in which success depended to a substantial degree on skill. The Supreme Court, naming regard to the nisiory of the legislation, the declared object thereof and the wording of the statute, came to the conclusion that trie competitions which were sought to be controlled and regulated by the Act were only those competitions in wnicn success did not depend to any substantial degree on skim and that having regarding to the circumstances unaer which the act was passed there cannot be any reasonable about that the Act was one to control and regulate prize competitions of a gambling character.

Even on the assumption that ''prize competition'' as defined in Section 2(d) of the Act included tnose in which success depended to a substantial degree on skill as went as those in which it did not so depend the supreme court elaborately considered the doctrine of severabiiity and aria down as many as seven rules of construction and on the application of the said rules it was need that the impugned provisions were severabie in their application to competitions in which success did not depend to any substantial degree on skill.

We may usefully refer to a recent decision of the Supreme Court in Kedar North Singh v. State of Bihar auk 19S2 SC 955. In that case the constitutionality of me provisions of Sections 124A and bus of the Penal code were questioned as being inconsistent with Article 19(1)(a) of the Constitution. Smha, C. J. after an elaborate discussion of the case law stated:

The provisions of the sections read as a which, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out the explanations appended to the main body of the section make It clear that criticism of public measures or comment on reovernrneni action, however strongly worded, would be which reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken etc., which nave the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps In to prevent such acivities in the interest 01 public order. So construed, the section, in our opinion, strikes the correct balance between individual tunaamentai rights and the interest of public order, it is also went settled that in. interpreting an enactment the court should have regard not merely to the literal meaning of the word used, but also take into consideration me antecedent history of the legislation, its purpose and the mischief it seeks to suppress, Vide (1) The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and (2) R.M.D. Chamarbaugwalla Vs. The Union of India (UOI), . Vieweo in that light, we nave no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.

It may also be mentioned that the constitutionality of Section 31 of this very same Act was challenged in the case in M. P. Menon v. State 1953 K LT 482 . kaki Jiao Tram-Co 540) and Govinda Kiiiai, j., held that the Act was valid because in the interests of public order restrictions could be Imposed on the right of freedom of speech and expression.

Therefore, we hold that though the provisions of the impugned statute impose restricions on the fundamental right of freedom of speech and expression, mose restrictions are in the interests of public order and witnm the admit of permissible legislative interference wnn Wat fundamental right and Clause (2) of An. 19 cieany saves the section from the vice of unconstitutionality. un the merits of the case we are bound by the concurrent findings of the Courts below that tried report is taxies and uaseless. The publication of such a report therefore clearly amounts to an offence u/s 1(5).

The conviction and sentence are, therefore, con-tinned and the revision petition is dismissed.