STATE OF MADRAS versus V. G. ROW

PATANJALI SAsTRI C. J.-This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, Public (General) Department, dated 10th March, 1950, whereby the State Government declared a Society called the People's Education Society an unlawful association.

p. 599

The respondent, who was the general secretary of the Society, which was registered under the Societies' Registration Act, 1860, applied to the High Court on 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 thereunder 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 (Rajamannar 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.

pp. 599–600

The Government Order referred to above runs as follows:-

p. 600

"WHEREAS in the opinion of the State Government, rhe 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;

p. 600

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 Act."

p. 600

No copy of. this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.

p. 600

The declared objects of the Society as set out in the affidavit of the respondent are :

p. 600

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science ;

p. 600

(b) to encourage, promote, diffuse and popularise political education among people ;

p. 600

( c) to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms ; and - ( d) to promote, encourage and popularise art, literature and drama.

pp. 600–601

It was however, stated in a counter-affidavit £led on behalf of the appellant by the Deputy Secretary to Government, Public Department, that, according to inforniation received by the Government, the Society was actively helpip.g the Communist Party in Madras which had been declared unlawful in August 1949 by utilising its funds through "its Secretary for carrying on propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.

p. 601

As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the petition, which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions. Before amendment by the Madras Act; the material provisions were as follows:- "15. In this Part-

p. 601

(1) "association" means any combrnation or body of persons whether the same be known by any distinctive name or not ; and (2) "unlawful association" means an association-

p. 601

(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or

p. 601

(b) which has been declared to be unlawful by the Provincial Government under the .powers hereby conferred.

p. 601

16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may by notification in the offidal Gazette declare such association to be unlawful." - The amending Act substituted for clause (b) in Section 15(2) the following clause :-

p. 601

"(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

p. 602

(ii) has interfered or interferes with the maintenance of public order or has such interference for its object, or

p. 602

(iii) has interfered or interferes with the administration of the law, or has such interference for its object".

p. 602

For the old section 16, sections 16 and 16A were substituted as follows :

p. 602

"16. (1) A notification issued under clause (b) of subsection (2) of section 15 in respect of any association shall-

p. 602

( 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

p. 602

(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.

p. 602

(2) Nothing in sub-section (1) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose."

p. 602

Under section 16A the Government is required, after the expiry of the time-fixed in the notification for making representations, to place before an Advisory Board constituted by it a copy of the notification and of the representations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association concerned or any other person, and submit its report to the Government. If it is found· by the Board that there is no sufficient cause for the issue of the notification in respect of the association" concerned, the Government is required to cancel the notification.

pp. 602–603

There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for membership or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof. Section 17 A, which confers power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where such power was exercised, by way of application, within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the place notified is situated in the Presidency Town or outside, for "a declaration that the place has not been used for the purposes of any unlawful association". If such declaration is made, the Government is to cancel the notification in respect of the place. Section 17B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property "is, or may be used for the purposes of the unlawful association" after following the procedure indicated. Section 17E similarly empowers the Government to forfeit funds of an unlawful association "if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association". The procedure to be followed in such cases is also 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.

p. 603

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) 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 cons,ideted in the light of the provisions of the amended Act when the petition came up for hear-. ing in the High Court on 21st August, 1950.

pp. 603–604

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 cert.ain ~pecified grounds in relation to them, those grolinds 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 .discussion befor.e' us as io whether or not the grounds referred to in section 15(2) (b)' as amended are justidable issues. If the factual existence of those grounds could be made the subject of inquiry in a court of law, the . restrictions sought to be imposed on. the right of association would not be open to . exception, but then the Government would. 'apparently have no use for section 15 (2) (b). For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Government the test of unlawfulness, rendered the insertion of the .words ''.in. its opinion". unnecessary and, indeed, inappropriate and that ' ' the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16 ; more especially as the "opinion" or the ."satisfaction" of the Government or of its oflicer:s is still the. determining factor in notifying a place under section 17 A(l) and in forfi:iting· the movables found therein under section 17B(l) or the funds of an unlawful association under section 17E (1). The provision· for an inquiry as to the existence or otherwise ' of such grounds before an Advisory Board and for: cancellation of the notilicatidn in· case the Board found · there was no sufficient cause for declaring the assoeiation as unlawful also pointed; it was· urged to . the same · conclusion.. The contention is not without force, and the position wa:s not contested for the respondent. It may, accordingly, be taken that the test under section 15(2) (b) is as it was under the old section 16, a subjective one, and the factual existence or otherwist of the grounds is not a justiciable issue. . It is on this basis, then, that the question has to be determined as to whether section 15 (2) (b) as amended falls within the limits of constitutionally permissible· legislative abridgement of the fundamental right conferred on the citizen by article 19(1)(c). Those limits are defined in clause ( 4) of the same article.

pp. 604–605, margin G

" ( 4) Nothing in sub-clause ( c) of the said clause shall affect the operation of any existing law in so far as it iinposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause."

p. 605

It wasi not disputed that the restrictions in question were imposed "in the interests of public order". But, are they "reasonable" restrictions within the meaning or article 19 ( 4) ?

p. 605

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 under cover 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 judg- ·ment, it cannot desert its own.·, ducy: : to' : determine .finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country.

pp. 605–606

The learned Judges of the High Court unanimously held that the restrictions under section 15 (2) (b) were not reasonable on the ground of (1), the inadequacy of the publication of the notification, (2) the omission to fix a time-limit for the Government sending the papers to the Advisory Board or for the latter to make its report, no safeguards being provided against the Government enforcing the penalties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or Ly pleader before the Advisory Board to make good his representation. In addition to these grounds one of the learned Judges (Satyanarayana Rao J.) held that the impugned Act offended against article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment between the two classes of unlawful associations mentioned in section 15(2) (a) and (b ) •. The o~her learned Judges did not, however, agree with this vi,ew. Viswanatha Sastri J. further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeimg with the cpnclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

p. 606

This Court had occasion in Dr. Khare's case ( tO· define the scope of the judicial review under clause (5) of article 19 where the phrase "imposing reasonable restrictions on the exercise of the right" also. occurs, and four out of the five Judges participating in the decision expressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive· [1950] S.C.R. 519. law should be .f.Xamined from the point of view of rearonableness ; · that is to say, the Court should consider not only factors such as the duration and the extent of the restrictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this; context to bear in mind that the test 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 mto 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.

pp. 606–607

Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of authorised restrictions on the right conferred by article 19 (1) (c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fileds, that the vesting of authority m the executive government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and · legal as,pects, to be duly tested in a judicial inquiry, is a strong element' which, in our opinion, must be taken into account in. judging the reasonableness of the restrictions imposed. by section 15 (2) (b) on the exercise of the fundamental right under article 19 ( 1) ( c) ; for, no summary and what is bound to be a largely one-sided review by an Ach•L,ory Board, even where its verdict is binding on the executive ·government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic free-· dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and, within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive• detention, no doubt, this Court upheld in Gopalan' s case(') deprivation of personal liberty by such means,but that was because the Constitution itself sanctions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C. J ." at page 121, quoting Lord Finlay in Rex v. Halliday('); "the court was the least appropriate tlribunal 'to investigate into circumstances: of suspicion on which such anticipatory action must be largely based".

pp. 607–608

The Attorney-General placed strong reliance on the decision in Dr. Khare' s cas~(') where the subjective satisfaction of the Government regarding the necessity for the externment of a person, coupled ·with a reference of · the matter to an Advisory Board whose opinion, however, had no binding 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 case, as the impugned Act provided that the Advisory Board's report was binding on the Government. We cannot agree. We consider that. that case [19501 S.C.R. 88. ( [1917] A:c. 260, 269, [1950] S.C.R. 519. . . . 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 A (1), of the East·Punjab Public Safety Act, which was the subject of.considera~ tion in Dr; Kha re's case('), authorised both preventive detention and. externmenL for. the same purpose and on the same ground namely, "with a view to prevent. ing him from acting in any manner prejudicial to the public safety or the maintenance of public -0rder 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. theii: own res" ponsibility. . These features. are; , however, absent in the grounds on which the Government is. authorised, under section 15 (2) (b), to declare associations unlaw • ful. · These grounds; taken by themselves, are factual· and not anticipatory or based on suspicion. ·An association is allowed to . be declared unlawful because it "constitutes" a danger or "has interfered or· .interferes" with the maintenance .of public.order or "has such interference fore its object",. etc.· ... The factual existence· of .-these grounds is :amenable to objective d_etermination by the court;: quite as: much· as the grounds mentioned in clause {a) of sub-section (2) of section 15; as to which the Attorney-Generalconceded that it . would be . .incumbent : f on, the ·Government to establish, as, a fact, that the association, which it a!leged,to •be unlawful, "encouraged" or .'.'aided"· persons to commit acts of· ·violence,· etc;: \Ve :are unable to discover any.reasonableness in the claim. of the Government in seeking,.by its mere ,declaration, ·to shut.out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public . Safety Act.was a temporary enactmentwhich,was to be in force only for a year, and any order made there-' under wasJo. expire at. the. termination ofthe Act. \Vhat. may be_ regarded as a. reasonable restriction imposed under such a statute will not necessarily be considered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government's notification under section 15(2)(b) to the association and its members or office-bearers. The Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by aflixture at the office, if any, of such association is prescribed. Nor is any other mode of proclamation of the notification at the place where such association ~arries 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 lost. Yet, the consequences to the members which the notification involves are most serious, for, their very member.iliip thereafter is made an offence under section 17.

pp. 608–610

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 rendc;r · 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 adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in Dr. Khare' s case(1) is distinguishable and cannot rule the present case as claimed by the learned Attorney- General. Indeed, as we have observed earlier, decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumulative effect of the varying facts and circumstances of each case.

pp. 610–611

Having given the case our best and most anxious consideration, we have arrived at the conclusion, in agreement with the learned Judges of the High Court, that, having regard to the peculiar features to which reference has been made, section 15 (2) (b) of the Criminal Law Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside the scope of authorised restrictions under clause ( 4) of article 19 and is, therefore, unconstitutional and void.

p. 611

The appeal fails and is accordingly dismissed with costs.

p. 611

Appeal dismissed. Agent for the appellant : P.A. Mehta. Agent for the respondent : S. Subrahmanyan.

p. 611

Agent for the Union of India and the State of Travancore-Cochin : P. A. Mehta.

p. 611

(1) [1950] S.C.R. 519.

p. 611